THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


V 

6 


DECISIONS 


SUPERINTENDENT  OF  COMMON  SCHOOLS 


STATE   OF   NEW-YORK. 


SELECTED  AND  AREANGED 


BY   JOHN   A.   DIX,   SUPERINTENDENT. 

TOflETHER  WITH 

TllK    LAWS    RELATING    TO    COMMON    SCHOOLS,    AND    THE    FORMS     AND    REGULATIONS 
PRESCRIBED   FOR   THEIR    GOVERNMENT. 


PUBLISHED  BY  AUTHORITY  OF  THE  LEGISLATURE. 


ALBANY: 

rRINTED  BY   CKOSWEIL,    VAN    BENTHUYSEN   &    BUFT. 

a 

1837. 


►  «r 


[Entered  according  to  Act  of  Congress,  in  the  year  one  thousand  eight  hun- 
dred and  thirty-seven,  by  John  A.  Dix,  in  the  Clerk's  office  of  the  Dis- 
trict Court  of  the  Northern  District  of  New- York.] 


«  "  -stack 
^nex 


^K 


PKEFACE. 


The  decisions  of  the  Superintendent  of  Common  Schools  con- 
tained in  this  volume  were  arranged  and  prepared  for  pubUca- 
tion  under  circumstances  which  are  explained  in  a  communica- 
tion to  the  legislature,  of  which  the  following  is  an  extract : 

"STATE  OF  NEW-YORK,> 

Secretary's  Office,      j  Albany,  Ath  January,  IBZl. 

"TO  THE  LEGISLATURE. 

"The  Superintendent  of  Common  Schools  begs  leave  to  state, 
that  he  has  collected  and  arranged  in  a  form  similar  to  that  in 
which  cases  decided  in  the  Supreme  Court  are  reported,  the  de- 
cisions which  have  been  pronounced  by  his  predecessor  and 
himself  in  matters  of  appeal  brought  before  them  for  adjudica- 
tion. This  collection  is  designed  to  embrace  every  important 
case  which  has  been  decided  by  the  Superintendent;  and  for  the 
purpose  of  rendering  the  decisions  more  serviceable  as  precedents, 
each  one  is  accompanied  by  a  brief  statement  of  the  principle  or 
rule  which  it  establishes,  or  what  rtiay  with  greater  technical 
propriety  be  denominated  a  note  of  the  case,  and  with-  a  suc- 
cinct recital  of  the  facts,  where  such  recital  is  essential  to  a  clear 
comprehension  of  the  subject  matter  of  adjudication.  A  very 
large  proportion  of  the  cases  reported  consists  of  opinions  given 
upon  ex  parte  statements ;  but  as  the  facts  accompany  the  opi- 
nions, they  will  show  as  clearly  as  decisions  pronounced  in  mat- 
ters of  appeal,  what  would  be  the  issue  of  an  adjudication  by 
the  Superintendent  in  a  similar  case,  and  they  will  therefore  have 
the  same  utility  as  precedents. 


841029 


IV  PR£FAC|(.  ^ 

"The  decisions  of  the  Superintendent  have  always  been  divest- 
ed, as  far  as  possible,  of  technicalities.  The  aim  has  been  to 
render  them  so  plain  that  there  should  be  no  room  for  misappre- 
hension, even  with  those  persons  who  are  wholly  unacquainted 
with  legal  maxims  or  forms.  They  have  been  reported  with  a 
strict  regard-to  the  same  object ;  and  if  they  have  the  recommen- 
dation of  clearness  and  simplicity,  all  that  was  in  view  will  have 
been  attained. 

"  If  each  school  district  were  to  be  put  in  possession  of  a  copy 
[of  the  decisions,]  it  is  believed  that  applications  to  the  Superin- 
tendent for  his  opinion  would  be  less  frequent,  and  that  appeals 
would  often  be  prevented  in  cases  in  which  they  are  now  made ; 
as  persons  thinking  themselves  aggrieved,  would  almost  always 
be  able  to  find  among  the  reported  cases,  one  so  nearly  similar 
to  their  own,  as  to  remove  all  doubt  as  to  the  result  in  the  event 
of  an  adjudication  by  the  Superintendent.  It  would,  therefore, 
be  reasonable  to  expect  that  the  inhabitants  of  school  districts 
would  in  numerous  instances  adjust  by  amicable  arrangement 
matters  of  difference,  which,  for  want  of  such  a  guide,  would 
have  been  brought  before  him  for  decision.  Thus  not  only 
would  the  delay,  trouble  and  expense  of  a  controversy  be  avoid- 
ed, but  there  would  be  no  incentive  to  that  feeling  of  hostility 
which  is  too  often  engendered  during  the  prosecution  of  appeals, 
and  which  frequently  continues  to  disturb  the  harmony  of  school 
districts  and  to  shed  an  unhappy  influence  upon  the  schools 
themselves,  long  after  the  subject  matter  of  contention  has  been 
disposed  of.  The  advantage  to  the  Superintendent  of  having  it 
in  his  power  to  refer  disputants  to  a  decision  applicable  to  the 
matter  of  controversy  between  them,  would  be  great ;  for,  in  case 
of  an  application  for  his  opinion,  he  could,  by  a  mere  reference 
to  a  reported  case,  avoid  the  necessity  of  entering  into  the  same 
explanations,  as  he  is  now  compelled  to  do  in  a  multitude  of 
cases,  where  the  facts  and  the  rule  applicable  to  them  are  the 
same. 

"  There  would  be  no  difficulty  in  publishing  the  work  at  pri- 
vate cost,  if  the  Legislature  should  not  think  pro|:)er  to  authorize 


PREFACE.  V 

its  publication  at  the  expense  of  the  State.  In  the  former  case, 
the  benefits  to  be  expected  from  it  would  be  but  partial.  The 
publisher  would  endeavor  to  reaUze  as  large  a  profit  as  possiblej 
and  the  price  would  probably  be  such  that  its  circulation  would 
be  comparatively  limited.  The  work  has  been  voluntarily  un- 
dertaken and  executed  by  the  Superintendent,  with  the  sole 
view  of  rendering  the  common  schools  a  service.  He  has  con- 
sidered his  time,  as  well  as  the  materials  on  which  he  has  been 
employed,  as  the  property  of  the  public ;  and  the  work  is  respect- 
fully presented  to  the  Legislature,  with  the  desire  that  it  may 
be  disposed  of,  should  it  be  deemed  worthy  of  any  action  on 
their  part,  in  such  manner  as  they  may  deem  most  useful  and 
proper. 

•■JOHN  A.  DIX.» 

This  communication  was  referred  to  the  committee  of  the 
Assembly  on  colleges,  academies  and  common  schools,  who  re- 
ported a  bill,  which  passed  both  houses  and  became  a  law,  and 
of  which  the  following  is  the  first  section : 

AN  ACT  concerning  Common  /Schools. 

Passed  May  1,  1837. 

The  People  of  the  /State  of  New-  York,  represented  in  Se- 
nate and  Assembly,  do  enact  as  follows : 

^  1.  The  Superintendent  of  common  schools  is  directed  to 
publish,  for  the  use  of  the  common  schools  in  this  state,  the  se- 
veral acts  now  in  force  relating  thereto,  together  with  such  de- 
cisions as  may  have  been  made  by  said  Superintendent,  and  hi» 
predecessors  in  office,  in  matters  of  appeal  brought  before  them 
for  adjudication:  and  he  shall  also  furnish  one  copy  to  each 
town  clerk  for  the  use  of  the  commissioners  and  inspectors  of 
common  schools.  '  rli  to  Jf: 

The  office  of  Superintendent  of  Common  Schools  was  created 
by  chap.  242  of  the  laws  of  1812,  and  Gideon  Hawley  was  ap- 
pointed to  fill  it.  He  continued  in  office  until  February,  1821, 
when  Welcome  Esleeck  was  appointed  in  his  place.  In  April  of 
the  same  year,  the  office  was  discontinued  as  a  distinct  depart- 


VI  PREFACE. 

ment,  and  the  duties  were  assigned  to  the  Secretary  of  State, 
who  has  since  that  time  been  ex  officio  the  Superintendent  of 
the  Common  Schools.  At  the  time  of  this  change,  John  Van 
Ness  Yates  was  Secretary  of  State. 

During  the  administration  of  the  department  by  Mr.  Hawley, 
the  Superintendent  had  no  appellate  power  with  respect  to  the 
determination  of  controversies  arising  in  school  districts.  This 
power  was  first  given  while  Mr.  Yates  was  in  office.  Although 
numerous  decisions  were  made  by  the  latter,  copies  were  not  pre- 
served in  his  office.  His  practice  was  to  send  them  to  be  recorded 
by  the  commissioners  of  common  schools  of  the  towns,  or  the 
trustees  of  the  districts,  in  which  the  cases  arose.  Abstracts  of 
some  of  them  were  appended  to  a  new  edition  of  the  School 
Laws  which  he  was  directed  to  publish  in  the  year  1822 ;  and 
a  reference  to  a  few  of  them  will  be  found  in  this  volume,  as 
well  as  to  the  exposition  by  Mr.  Hawley  of  the  early  laws  relat- 
ing to  the  common  schools. 

In  1826,  Azariah  C.  Flagg  was  appouited  Secretary  of  State, 
and  from  the  commencement  of  his  administration  of  the  com- 
mon school  department  down  to  the  present  time,  a  continuous 
record  of  decisions  has  been  preserved. 

Mr.  Flagg  continued  in  office  until  January,  1833,  when 
John  A.  Dix  was  appointed  in  his  place;  and  for  the  reasons  be- 
fore assigned,  this  volume  contains  only  the  decisions  pronounc- 
ed by  these  two  officers. 

Should  this  pubUcation  have  the  efiect  of  diminishing  the  num- 
ber of  controversies  in  school  districts,  or  lead  to  an  amicable  set- 
tlement of  them  before  they  shall  have  ripened  into  feuds,  and 
thus  contribute  to  the  preservation  of  that  spirit  of  harmony  on 
which  the  social  comfort  of  parents,  and  the  intellectual  im- 
provement of  their  children  are  alike  dependent,  the  undersign- 
ed will  be  amply  repaid  for  the  labor  expended  in  preparing  the 

decisions  for  the  press. 

JOHN  A.  DIX. 
Albany f  Augtist  1,  1837. 


-#  « 


ERUATA. 


Page  1.  1st  line  from  bottoni,  for  42  read  43. 

"    14.  10th  "  "        strike  out  marks  of  quotation. 

"    16.15th  '*  "        between  "  the"  and  "  oumer,"  iaaert  nm-rendtnt. 

"    18.9th  "  "        for  iCin^  read  iJwt^. 

"    28.9th  "  "        after  "  o«A«r«"  insert  18  Jotewon,  351. 

"    69.  14th  "  top,  for  "their"  teadits. 

"  127.  5th  "  lop,  for  "moneys"  read  "money." 

"  142.  14th  "  bottom,  for  "officers"  read  "offices." 

"274.19th  "  "       after  "eocA"  insert  o«W. 

"334.11th  "  "        for  "  </wre"  read  </»«>. 


.'Wt 


* 


DIRECTIONS  TO  THE  COMMISSIONERS  OF 
COMMON  SCHOOLS. 

The  Commissioners  of  Common  Schools,  on  receiving  the 
copies  of  this  work,  which  will  be  sent  to  them  for  distribution, 
will  deposite  one  copy  with  the  Town  Clerk  for  the  use  of  the 
Commissioners  and  Inspectors  of  Common  Schools  of  the  town ; 
and  they  will  distribute  the  residue  among  the  school  districts  in 
their  respective  towns,  giving  one  copy  to  each  district.  Before 
they  deliver  a  copy  to  a  joint  district,  they  must  satisfy  them- 
selves that  it  has  not  already  received  one  from  the  Commissioners 
of  the  other  town  or  towns  in  which  such  district  partly  lies. 
The  work  has  been  printed  at  great  expense  to  the  state ;  and  the 
utmost  care  must,  therefore,  be  taken  in  distributing  the  copies 
according  to  the  intention  of  the  law.  It  is  hoped  that  equal 
care  will  be  taken  in  preserving  them  for  the  use  of  the  towns 
and  districts  to  which  they  are  furnished.  If  after  all  the  dis- 
tricts in  a  town  are  supplied,  there  should  be  surplus  copies  re- 
maining on  the  hands  of  the  Commissioners,  they  should  ascer- 
tain whether  there  is  not  a  deficiency  in  some  adjacent  town, 
and  in  such  a  case  the  surplus  copies  should  be  delivered  to  the 
Commissioners  of  the  town  in  which  such  deficiency  exists. — 
When  a  new  district  shall  be  hereafter  created,  it  will  be  fur- 
nished with  a  copy  by  the  Superintendent  of  Common  Schools, 
on  a  certificate  fiom  the  Commissioners  that  such  district  was 
formed  subsequently  to  the  distribution  of  the  work,  and  that  it 
has  not  received  a  copy. 


'^"^ 


^$%'  'fu   ?;;i-«it")^. 


CASES 

DECIDED    BY    TUB 

SUPERINTENDENT  OF  COMMON  SCHOOLS 

OF  THE 

STATE  OF  NEW-YORK, 

FROM    1826   TO    1837,    INCLUSIVE. 


The  Commissioners  of  Common  Schools  of  the  town 
of  Lorraine,  ex  parte. 

The  formation  of  a  new  district  not  having  been  recorded  at  the  time  it  was 
formed,  on  application  to  the  Superintendent  of  Common  Schools,  the  com- 
missioners will  be  authorized  to  enter  their  proceedings  of  record. 

On  the  representation  of  two  of  the  commissioners  of  common 
schools  of  the  town  of  Lorraine,  it  appeared  that  district  No.  11 
in  said  town  was  formed  on  the  petition  of  the  freeholders  and 
inhabitants  of  districts  No.  3  and  7,  and  that  the  order  of  the 
commissioners  was  left  with  the  town  clerk,  who  was  requested 
to  record  the  same  on  the  15th  Dec.  1825.  By  the  neglect  of 
the  town  clerk  the  oider  was  not  recorded. 

By.  A.  C.  Flagg,  March  29,  1826.  Ordered,  that  the  acts 
and  doings  of  the  commissioners  of  common  schools  of  the  town 
of  Lorraine  in  the  organization  of  district  No.  11,  be  entered  of 
record,  in  conformity  to  the  11th  section  of  the  act  entitled  "An 
act  for  the  support  of  common  schools,"  passed  April  12,  1819.* 

The  Commissioners  of  Common  Schools  of  the  town 
of  Starkey,  ex  parte. 

The  formation  of  a  new  town  does  not  affect  the  organization  of  school  districts. 
A  district  intersected  by  the  line  of  division  between  the  new  town  and  the 
town  from  which  it  is  taken,  becomes  a  joint  district. 

By  an  act  passed  April  6th,  1824,  a  part  of  the  town  of  Read- 
ing was  set  off  and  erected  into  a  new  town  by  the  name  of 
Starkey.    The  first  town  meeting  was  held  in  Starkey  in  March, 

*  Sec.  42,  page  474,  vol.  1,  ]|.  S.  ,.,...     .,       , 


■  41,- 


*a  CASES    DECIDED    BY   THE 

and  in  Reading  in  April,  1826.  By  the  division  referred  to,  school 
districts  No.  7  and  8,  were  intersected  by  the  line  dividing  the 
two  towns,  and  the  commissioners  of  common  schools  of  the  town 
of  Reading  applied  to  the  Superintendent  to  be  instructed  as  to 
the  effect  of  the  division  upon  the  above  mentioned  districts. 

By  A.  C.  Flagg,  Mai/  20,  1826.  The  statute  relating  to 
common  schools,  authorizes  the  organization  of  school  districts 
without  reference  to  town  or  county  lines.  The  alteration  of  a 
town  line,  therefore,  does  not,  as  a  matter  of  course,  break  up  or 
disorganize  a  school  district.  And  where  the  line  of  a  new  town 
runs  through  a  school  distiict,  the  commissioners  of  the  old  and 
new  town  should  regard  a  district  thus  intersected  by  a  town  line, 
as  a  joint  district.  The  law  seems  to  contemplate  that  school 
districts  should  be  formed  with  a  view  of  accommodating  neigh 
borhoods,  without  regarding  the  divisions  into  towns  and  coun- 
ties, except  where  the  inhabitants  would  be  as  w'ell  accommoda- 
ted by  regarding  such  lines.  It  is  not  a  matter  of  any  particular 
consequence  to  the  inhabitants  of  a  district,  whether  or  not  an 
imaginary  town  line  runs  through  their  district.  But  it  is  a  sub- 
ject of  deep  interest  to  them  that  their  school  district  should  not 
be  disarranged;  because  it  is  by  keeping  up  their  organization, 
and  complying  with  all  the  requirements  of  the  law,  that  the 
trustees  are  enabled  to  make  such  report  as  will  entitle  the  dis- 
trict to  the  public  money. 

The  same  steps  must  be  taken  to  reorganize  or  dissolve  dis- 
tricts composed  of  parts  of  both  towns,  as  if  those  districts  had 
been  formed  by  the  commissioners  of  both  towns  after  the  divi- 
sion of  the  town  c^  Reading. 

The  Trustees  of  School  District  No.  1  in  the  town 
of  Lansingburgh,  ex  parte. 

An  error  or  omission  in  the  assessment  roll  of  the  town  may  be  corrected  or  sup- 
plied by  the  trustees  of  a  school  district  in  making  oat  a  tax-list. 

In  assessing  a  tax  to  be  levied  for  the  purpose  of  erecting  a 
school-house  in  district  No.  1,  in  the  town  of  Lansingburgh,  the 
trustees  believing  that  the  valuation  of  some  of  its  taxable  pro- 
perty by  the  town  assessors  was  erroneous,  but  doubting  their 
power  to  correct  the  assessment  roll,  addressed  to  the  Superin- 
tendent the  following  question,  viz : — "Are  the  trustees  of  a 
school  district  bound  by  valuations  put  upon  property  by  the  town 
assessors,  or  may  they  exercise  a  discretion  and  vary  the  valua- 
tions accordingly  ?» 

By  A.  C.  Flagg,  June  5,  1826.  The  law  provides  that  the 
valuations  "shall  be  ascertained  and  taken  from  the  then  last 
assessment  roll  of  the  town,  so  far  as  the  same  can  be  ascertain- 
ed and  taken  therefrom."     Where  it  cannot  be  thus  a8certained^ 


SUPERINTENDENT    OP    COMMON    SCHOOLS.  6 

the  trustees  can  "  inquire  into  and  ascertain  the  same  from  the 
best  evidence  in  their  power."  Sec.  25,  act  of  April  12,  1819.* 
Where  there  is  a  known  error  in  the  town  assessment,  the 
trustees  may  correct  it  in  the  district  assessment.  For  instance ; 
if  a  resident  of  the  district  should  purchase  or  sell  a  lot  after  th<: 
town  assessment  had  been  made,  the  trustees  would  be  re- 
quired to  vary  the  district  assessment  accordingly.  But  where 
there  is  no  change  in  the  property  of  the  individual,  and  the  va- 
luation is  a  matlei-  of  opinion  merely,  the  trustees  must  be  guid- 
ed by  the  assessment  roll  of  the  town,  even  though  in  their  judg- 
ment a  farm  be  worth  more  or  less  than  the  estimate  put  upon 
it  by  the  town  aissessors; 

Edmund  Whittier  against  the  inhabitants  of  school 
district  No.  11  in  the  town  of  Ogden. 

An  appeal  to  the  Superintendent  wi]l  not  be  entertained  when  the  point  at  issue 
has  been  settled  by  an  adjudication  upon  the  same  case  in  a  court  of  compe- 
tent jurisdiction. 

This  was  an  appeal  from  the  proceedings  of  a  meeting  of  the 
inhabitants  of  school  district  No.  1 1  in  the  town  of  Ogden,  at 
which  a  tax  of  $250  was  voted  to  build  a  school-house.  The 
facts  are  fully  set  forth  in  the  decision  of  the  Superintendent. 

By  A.  C.  Flagg,  June  23,  1826.  It  is  alleged  that  the  vote 
imposing  the  tax  was  carried  by  the  admission  on  the  part  of 
the  moderator  of  the  illegal  votes  of  William  Hill  and  Aleen 
Smitli. 

The  appellant  has  presented  a  number  (^  affidavits  to  show 
tliat  Hill  and  Smith,  in  the  opinion  of  those  who  testify,  were 
not  legal  voters.  The  affidavits  set  forth  generally  that  the  per- 
sons testifying  have  no  knowledge  that  Hill  and  Smith  were  le- 
gal voters,  and  from  their  situation  and  circumstances  do  not  be- 
lieve they  w^ere. 

On  the  other  side,  the  record  of  proceedings  before  a  magis- 
trate is  produced  and  duly  authenticated,  by  which  it  is  shown 
that  Hill  and  Smith  were  prosecuted  for  having  voted,  without 
being  entitled  to  vote  by  law,  and  that  on  the  trial  of  the  cause 
it  appeared  that  they  were  legal  voters  at  ihe  time  of  the  meet- 
ing, froiTj  the  proceedings  of  which  the  appeal  is  brought.  In 
addition  to  this,  Smith  and  Hill  testify  that  they  were  at  the  time 
of  the  meeting  worth  fifty  dollars  in  taxable  property. 

The  Superintendent  feels  boimd  to  recognize  the  decision  of 
the  court  as  having  settled  the  point  that  Hill  and  Smith  were 
legal  voters.  This  being  tlie  only  point  at  issue,  it  is  ordered, 
tliat  the  appeal  in  this  case  be  dismissed. 

•  Sec.  79  and  80,  pages  4S2  and  483,  vol.  1,  R.^.  ^ 


4'  CASES    DECIDED    BY   THE 

Zeno  Allen  and  others  against  the  Trustees  of  school 
district  No.  1  in  the  town  of  Hounsfield. 

If  the  children  residing  in  a  school  district  are  too  numerous  to  be  instructed  in 
one  school,  the  trustees  may  hire  one  or  more  additional  teachers  and  the  ne- 
cessary rooms  for  the  accommodation  of  the  additional  schools,  when  authori- 
zed by  a  vote  of  the  inhabitaiits;  but  the  compensation  of  the  teachers  must 
be  provided  for  in  the  same  manner  as  though  only  one  instructer  had  been 
employed. 

The  daily  opinions  of  the  Superintendent,  given  in  reply  to  abstract  questions 
and  ex  parte  representations,  are  not  to  be  classed  among  those  decisions 
which  the  law  declares  to  be  fmal. 

This  appeal  was  brought  from  the  decision  of  the  majority  of 
the  trustees  of  school  district  No.  1  in  the  town  of  Hounsfield, 
under  the  following  circumstances : 

The  inhabitants  of  the  district,  which  was  composed  of  the 
village  of  Sackett's  Harbor,  finding  the  number  of  children  too 
great  for  one  school,  and  disagreeing  as  to  the  division  of  the 
district,  voted,  at  a  meeting  held  on  the  8th  of  January,  1824, 
that  the  trustees  should  employ  one  or  more  additional  teachers, 
and  hire  separate  rooms  for  them,  and  voted  a  tax  to  pay  the 
rent.  They  also  voted  that  the  public  money  should  be  divided 
among  the  teachers  in  proportion  to  the  number  of  scholars 
taught  in  each  school.  These  proceedings  w'ere  sent  to  the  Su- 
perintendent, (John  V.  N.  Yates)  who  sanctioned  and  confirmed 
them,  and  ordered  them,  together  with  his  approval,  to  be  re- 
corded in  the  town  clerk's  books. 

In  the  fall  of  1824,  the  trustees  hired  two  teachers  and  a  room 
for  the  additional  school,  and  gave  the  inhabitants  permission  to 
send  to  either,  as  they  might  choose.  The  result  was  that  the 
number  of  scholars  in  one  of  the  schools  was  nearly  double  the 
number  in  the  other.  This  circumstance  gave  rise  to  a  differ- 
ence of  opinion  among  the  trustfees :  two  of  them  were  in  favor 
of  applying  the  public  money  equally  to  the  compensation  of  the 
teachers,  and  assessing  the  balance  on  the  patrons  of  the  school:^ 
in  proportion  to  the  number  of  days  sent  to  either  or  both.  The 
other  trustee  objected  to  that  mode  of  compensating  the  teachers, 
and  obtained  an  opinion  from  the  Superintendent  in  favor  of  his 
own,  which  was  in  conformity  to  the  vote  of  the  inhabitants  of 
the  district  on  the  8th  Jan.  1824.  Being  overruled  by  a  majo- 
rity of  the  trustees,  an  appeal  was  brought  in  the  spring  of  1826, 
from  the  determination  of  the  latter  to  provide  for  the  payment 
of  the  wages  of  the  two  teachers  without  regard  to  the  number 
of  scholars  taught  by  each. 

By  A.  C.  Flagg,  June  20,  1826.  In  whatever  light  this 
question  is  taken,  I  conceive  that  district  No.  1  must  be  consi- 
dered one  district  under-  the  control  of  one  set  of  trustees,  and 
that  all  the  rules  for  the  government  of  distinct  districts  are  ap- 
plicable to  this?    The  law  in  providing  for  the  distribution  of  the 


SUPERINTENDENT    OF   COMMON    SCHOOLS.  5 

public  money,  recognizes  certain  geographical  divisions  ;  such  as 
counties,  towns  and  districts.  In  the  5th  section  of  the  act  of 
1819,*  the  Superintendent  is  required  "  to  apportion  the  said  sum 
of  money  among  the  several  counties  of  this  state,  and  the  several 
shares  of  such  counties  among  the  several  towns  and  cities  there- 
of," m  the  ratio  of  the  population  "of  such  counties  and  towns  or 
cities."  The  15th  section  requires  the  commissioners  to  apportion 
the  public  money  received  by  them  "according  and  in  proportion 
to  the  number  of  children  between  5  and  15,"  &c.t  And  the 
26th  section,  taken  in  connexion  with  the  25th,  provides  that 
the  trustees  shall  "  agree  with  and  employ  all  teachers  to  be  em- 
ployed" in  the  district ;  and  to  "  pay  the  v/ages  of  such  teachers 
out  of  the  moneys  which  shall  come  into  their  hands,"  «fcc.,  and 
"  the  residue  of  the  wages  of  such  teachers  shall  be  collected  by 
the  trustees"  by  a  tax  which  is  to  be  assessed  upon  the  inhabi- 
tants of  the  district,  "  according  to  the  number  of  days  for  which 
each"  person  "  shall  be  liable  to  pay  for  instruction,"  (kc*  Mr. 
Hawley,  who  drafted  the  law  of  1819,  in  his  exposition  of  this 
part  of  the  act,  says :  "  All  who  reside  in  the  district,  and  attend 
the  school,  as  they  may  of  common  right,  must  necessarily  par- 
ticipate eqKally  in  the  benefit  of  the  public  money ;  for  as  it 
must  be  applied  to  the  payment  of  teachers'  w^ages  generally, 
without  reference  to  any  particular  scholars,  it  will  reduce  the 
amount  which  would  otherwise  be  payable  by  each  employer, 
alike  to  all.  If  a  district  be  formed  out  of  two  or  more  adjoining 
towns,  and  the  trustees  receive  money  from  each  town,  they 
must  nevertheless  consider  it  as  one  common  fund,  and  apply  it 
tor  the  benefit  of  all  alike,  in  the  same  manner  as  if  they  were 
one  entire  district  in  one  town.'^ 

In  authorizing  the  Superintendent,  the  commissioners  and  the 
trustees  to  apportion  and  distribute  the  public  money,  the  law 
recognizes  the  principle  of  graduating  the  apportionment  accord- 
ing to  the  population  and  number  of  scholars,  and  equally  among 
the  different  individuals  of  the  same  district. 

It  is  the  duty  of  the  trustees  to  '•'  employ  all  teachers"  and  to 
furnish  such  an  amount  of  tuition  as  the  necessities  of  the  dis- 
trict require ;  and  they  are  bound  to  furnish  to  each  individual 
of  the  same  district  tuition  at  the  same  rate.  Three  teachers 
were  hired  and  the  trustees  assured  the  inhabitants  that  the  price 
of  tuition  should  be  alike  to  all.  But  by  applying  the  rule  con- 
tended for  in  this  case,  a  person  who  has  sent  six  children  to 
Shepard  would  have  to  pay  $14.46,  while  a  person  senrdii^g  the 
v^ame  number  to  Chaplin  would  have  to  pay  only  $4. 0^5  and 

: ^; 

•  Sec.  3,  page  467,  vol.  1,  R.  S.,  as  amended  by  the  act  of  April  20,"j 
ly  <^p.  320  of  the  laws  of  that  year,  ,sec.  5  and  6. 
^  '     t  Sub.  6  of  sec.  20,  page  470,  vol.  1,  R.  S. 

V  i  Sub.  7  and  8  of  sec.  78,  page  481,  v«l.  1,  R.  S.  <t  4, 


6  CASES    DECIDED   BY   THE 

all  in  the  same  district.  There  is  no  authority  in  the  law  for 
such  an  unequal  distribution,  and  I  conceive  that  it  is  irreconci- 
lable with  the  principles  of  equity.  What  equivalent  is  given 
to  the  patrons  of  Shepard's  school  to  warrant  this  great  dispro- 
portion in  the  assessment  ?  None,  which  is  entitled  to  conside- 
ration. The  patrons  of  the  small  school  are  not  formed  into  a 
separate  district  by  their  own  request,  and  designated  by  name 
as  belonging  to  one  school,  nor  are  they  bounded  by  the  designa- 
tion of  certain  geographical  lines  on  account  of  any  local  accom- 
modation to  their  children.  But  the  taxable  strength  of  their 
sub-district  is  to  be  settled  by  chance ;  subject  to  be  affected  by 
the  inchnation  or  caprice  of  others.  They  continued  in  good 
faith  in  the  school,  as  requested  by  the  trustees,  relying  upon  the 
assurance  that  the  charge  for  tuition  would  be  alike  upon  all  the 
members  of  district  No.  1.  Their  neighbors  changed  to  the 
other  schools,  and  thus  left  the  parents  of  thirty  scholars,  who 
had  no  volition  in  the  case,  to  pay  as  much  for  tuition  as  the  pa- 
rents of  a  hundred  scholars ;  and  all  this  under  the  authority  of 
the  same  trustees.  This  view  of  the  subject  is  forcibly  illustra- 
ted by  the  fact  that  some  members  of  the  district  actually  sent 
to  all  three  of  the  schools.  And  here  it  might  be  welt  to  en- 
quire what  rule  the  trustees  should  adopt  in  making  out  the  as- 
sessment against  a  person  who  should  have  sent  to  all  the 
schools :  Should  it  be  8|  mills  per  day  for  the  time  sent  to  Cha- 
plin; 21  cents  for  the  time  sent  to  Everett;  and  3  cents  for  the 
time  sent  to  Shepard  ?  In  this  way,  they  might  require  a  diffe- 
rent scale  of  assessment  for  almost  every  person  in  the  district. 
As  to  the  vote  of  the  district  it  is  only  necessary  to  say  that  a 
tax  voted  by  a  district  meeting  must  be  an  equal  tax,  according 
to  property,  upon  all  the  inhabitants  of  the  district.  The  reso- 
lution passed  in  Jan.,  1824,  contemplated  a  division  of  the  pub- 
lic money  "according  to  the  number  of  scholars  taught  in  each 
school."  It  was  expected,  no  doubt,  by  the  meeting,  that  the 
schools  would  be  equally  attended,  and  consequently  the  money 
equally  apportioned.  It  is  not  to  be  inferred  from  the  terms  of 
this  resolution  that  the  meeting  could  have  contemplated  an  in- 
equality in  the  distribution  of  the  public  money  or  in  the  appoi- 
tionitient  of  the  tax.  This  inequality  was  caused  by  those  who 
disregarded  the  efforts  of  the  trustees  in  their  attempt  to  equaUze 
the  schools.  But  the  present  trustees  are  protected  by  a  subse- 
quent vote  of  a  meeting,  which  is,  "  That  the  teachers'  wages 
be  paid  by  a  tax  on  the  scholar,  after  the  public  money  is  ex- 
pended." This  was  a  vote  taken  at  a  meeting  of  the  whole 
district ;  it  must  have  had  reference  to  all  the  inhabitants  of  that 
district  taken  collectively,  and  to  the  eiggregate  amount  of  tui- 
tion required  for  district  No.  1.  In  collecting  the  teachers'  wa- 
ges <'  by  a  tax  on  the  scholar,"  it  was  the  obvious  duty  of  the 


SUPERINTENDENT    OF   COMMON   SCHOOLS.  7 

trustees  to  assess  each  person  according  to  the  number  of  scho- 
lars sent  by  him  ;  that  is,  in  proportion  to  the  amount  of  tuition 
which  had  been  received  by  his  children,  having  relation  to  all 
the  other  inhabitants  of  the  district.  It  could  not  have  had  re- 
ference to  the  number  of  scholars  which  might  by  chance  be 
sent  to  one  or  the  other  of  the  three  schools. 

The  opinion  given  by  the  Superintendent  to  the  trustees  of 
1824,  could  only  apply  to  that  special  case.  It  could  not  be  con- 
sidered permanent  in  its  character,  on  the  ground  that  it  was 
the  Superintendent's  construction  of  the  school  act ;  for  a  diffe- 
rent nile  is  established  in  that  act  in  regard  to  taxes  and  distri- 
buting the  public  money  in  districts.  And  the  appellants  can- 
not claim  an  adherence  to  its  principles  as  a  decision  under  the 
7th  section  of  the  act  of  1822.  That  act  provides  that  persons 
aggrieved  by  decisions  of  the  trustees,  (fcc,  may  appeal  to  the 
Superintendent,  "  whose  decision  thereon  shall  hejinaV^  The 
fact  of  establishing  a  tribunal  from  which  there  is  no  appeal, 
does  not  consequently  give  the  Superintendent  unlimited  juris- 
diction. So  far  from  this  it  ought  to  be  an  admonition  to  exer- 
cise this  authority  with  great  caution  and  circumspection,  and 
not  until  after  a  hearing  of  both  parties,  and  an  examination  of 
all  the  facts  in  the  case.  In  this  case,  the  opinion  of  the  Super- 
intendent appears  to  have  been  given  on  an  ex  parte  represen- 
tation, and  must  be  considered  merely  advisory,  and  applicable 
to  that  special  case,  based  upon  the  representations  made.  It  is 
only  in  cEises  of  appeal  that  the  decisions  of  the  Superintendent 
are  declared  by  the  law  to  be  final;  and  in  such  cases  the 
law  pre-supposes  that  there  will  be  a  hearing  of  both  sides 
and  a  full  investigation  of  the  rights  of  both  parties,  preparato- 
ry to  making  such  decision.  The  daily  opinions  of  the  Super- 
intendent given  in  reply  to  abstract  questions  and  ex  parte  re- 
presentations, cannot  be  classed  among  those  decisions  alluded  to 
in  the  act  of  1822,  and  which  are  declared  to  be  final.  It  would 
1^  unjust  to  allow  the  opinions  thus  given,  in  reply  to  abstract 
questions,  to  affect  the  rights  of  individuals  beyond  the  cases  in 
which  they  were  specially  given. 

If  it  is  contended  that  those  who  sent  to  the  large  school  re- 
lied upon  the  order  of  the  Superintendent,  it  might  be  asked  in 
what  respect  they  have  injustice  done  them  7  According  to  the 
decision  of  a  major  part  of  the  trustees,  they  are  called  upon  to 
pay  only  an  equal  proportion  of  the  expense  of  the  tuition  which 
was  requisite  for  the  first  district.  Is  this  a  hardship  ?  What 
entitles  them  to  exemption  ?  The  only  reason  urged  by  the  ap- 
pellants is,  that  their  children  suffered  the  inconvenience  of  at- 
tending a  crowded  school.  But  this  was  a  matter  of  choice  with 
themselves ;  and  if  they  sent  an  unreasonable  number  of  scho- 
lars to  the  school,  against  the  wishes  of  the  trustees,  they  can- 
Hot  expect  to  take  advantage  of  their  own  wrong. 


8  CASES    DECIDED   BY    THE 

It  is  a  well  settled  principle  that  taxation  to  be  just  must  be 
equal.  It  is  inequality  which  renders  taxes  intolerable  and  fur- 
nishes a  good  cause  of  complaint.  There  is  no  authority  given 
in  the  school  act,  or  in  the  general  act  for  the  assessinent  and 
collection  of  taxes,  for  making  any  other  than  an  equal  assess- 
ment, graduated  according  to  the  property  and  ability  to  pay  oi 
each  individual.  This  equality  is  not  only  kept  up  among  the 
different  persons  of  the  same  town,  but  by  the  19th  section  of 
the  act  for  the  assessment  and  collection  of  taxes,  boards  of  su- 
pervisors are  required  to  compare  the  rolls  of  the  different  townS; 
"  to  ascertain  whether  the  valuations  in  one  town  bear  a  just  re- 
lation or  proportion  to  the  valuations  in  all  the  towns  in  the 
county."  I  am  unable  to  discover  any  good  reason  which  would 
authorize  a  departure  in  relation  to  any  of  the  citizens  of  dis- 
trict No.  1  from  this  equitable  principle  which  is  recognized  in  all 
our  systems  of  taxation. 

After  a  full  consideration  of  the  appeal  of  Zeno  Allen,  one  ol 
the  trustees  of  district  No.  1  in  Hounsfield,  and  Hiram  Steele, 
and  others,  inhabitants  of  said  district,  and  after  a  hearing  of 
the  evidences  produced  by  Messrs.  Canfield  and  Jenison,  two 
of  the  trustees  of  said  district,  as  well  as  of  those  produced  by 
the  said  appellants,  the  Superintendent  of  Common  Schools  de- 
cides, that  the  appeal  of  the  said  Zeno  Allen  and  others,  be  dis- 
missed, and  that  the  major  part  of  the  trustees  of  district  No.  1 
in  Hounsfield  in  the  county  of  Jefferson,  have  acted  correctly  in 
the  distribution  of  school  money  and  in  the  assessment  for  the 
collection  of  the  residue  of  teachers'  wages  in  said  district,  and 
that  the  collector  of  district  No.  1  will  proceed  to  collect  said  as- 
sessment under  the  direction  of  the  trustees,  or  a  major  part  of 
them,  according  to  law. 

The  Trustees  of  school  district  No.  —  in  the  town  of 
Greece,  ex  parte. 

Land  purchased  after  a  tax  is  voted,  but  before  the  tax-list  is  made  out,  must  b« 

assessed  to  the  purchaser  if  he  resides  in  the  district. 
A  tenement  leased  for  a  school-house  cannot  be  taated. 
Vessels,  canal-boats,  &c.,  are  not  exempt  from  taxation. 

This  was  an  application  to  the  Superintendent  to  decide  cer- 
tain questions,  which  arose  among  the  trustees  of  district  No.  — 
in  the  town  of  Greece,  in  assessing  a  tax  voted  by  the  inhabi- 
tants of  the  district  for  the  purpose  of  leasing  and  repairing  a 
tenement  to  be  used  as  a  school-house.  The  questions  present- 
ed by  the  trustees  are  subjoined,  with  the  answers  of  A.  C. 
Flaog  annexed,  March  30,  1826. 

Question  1.  Can  land,  which  was  purchased  after  a  tax  wa« 
voted,  and  before  the  tax-Hst  was  made  oat,  and  which  was  tax- 

V 

Mi. 


SUPERINTENDENT    OF   COMMON    SCHOOLS.  9 

ed  as  non-resident  property  in  the  last  town  assessment,  be  as- 
sessed to  the  purchaser,  he  being  a  resident  of  the  district  ? 

Answer.  Land  purchased  after  a  tax  is  voted,  but  before  the 
(ax-list  is  made  out,  may  be  assessed  to  the  purchaser,  he  being 
a  resident  of  the  district,  notwithstanding  it  may  have  been  as- 
sessed as  non-resident  land  in  the  last  town  assessment.  The 
25th  section  of  the  act  of  1819,  requires  the  trustees  to  make  out 
a  rate  bill  or  tax-list  of  "  all  the  taxable  inhabitants  residing  in 
their  district,  at  the  time  of  making  out  sudi  rate  hill  or  tax- 
list"*  (fee,  "  according  and  in  proportion  to  the  vahiations  of  the 
taxable  propert}^  which  shall  be  owned  or  possessed  by  them  at 
the  time  last  aforesaid^'t  which  is  the  time  when  the  list  is 
made  out.  They  are  required  to  refer  to  the  town  assessment 
for  the  valuations  of  the  property,  but  not  for  a  list  of  the  own- 
ers or  occupants ;  and  the  town  assessment  is  not  obligatory 
on  them  even  for  the  valuations,  only  so  far  as  it  is  a  correct 
guide. 

Question  2,  The  house,  which  has  been  leased,  is  it  taxable 
to  the  lessor  ? 

Answer.  If  the  school-house  is  meant,  it  cannot  be  taxed. 
The  3d  section  of  the  "Act  for  the  assessment  and  collection  of 
taxes,"  passed  April  23d,  1823,t  in  the  exemptions  from  taxes, 
includes  school-houses  and  the  lands  upon  which  they  stand. 

duestion  3.  Are  vessels,  canal-boats,  &c.,  a  species  of  personal 
property  liable  to  taxation  in  tow^n  or  district  assessments  ? 

Answer.  Vessels,  canal-boats,  <fec.,  are  not  exempted  by  the 
tax  law.  The  4th  section  of  the  act  for  the  assessment  of  tax- 
es,§  declares  that  "  all  personal  estate  of  whatever  description" 
shall  be  subject  to  taxation. 

The  Trustees  of  school  district  No.  1  in  the  town  of 
Athens,  against  the  Commissioners  of  Common 
Schools  of  said  town. 

If  the  annual  report  of  the  trastees  of  a  school  district  is  furnished  before  the 
public  moneys  are  apportioned  by  the  comntiissioners,  it  is  in  time. 

An  omission  on  the  part  of  the  trustees  to  comply  with  a  provision  of  law  before 
the  act  containing  it  has  been  published  and  distributed,  ought  not  to  preju- 
dice the  equitable  rights  of  the  district. 

This  was  an  appeal  by  the  trustees  of  school  district  No.  1  in 
the  town  of  Athens,  from  the  decision  of  the  commissioners  of 
common  schools  of  said  town,  in  refusing  to  allow  that  district  a 
portion  of  the  pubhc  money.  The  facts  are  fully  stated  in  th«j 
Superintendent's  decision. 

•  Sub.  3  of  sec.  75,  and  page  482,  aec,  79^  vol.  1,  R,  S. 

t  Sec.  76,  page  482,  vol.  1,  R.  S. 

i  Sub.  3  of  sec.  4,  page  888,  vol.  1,  R.  S. 

§  Sec.  1,  page  887,  vol,  1,  R.  S.  , 


i 


I 


10  CASES    DECIDED    BY    THE 

By  A.  C.  Flagg,  July  21,  1826.  In  this  case  the  commis- 
sioners rejected  the  report  of  the  trustees  of  district  No.  1,  and 
refused  to  apportion  the  school  money  to  said  district. 

1st.  Because  the  report  of  the  trustees  was  not  made  within 
the  time  contemplated  by  the  school  act. 

2d.  That  said,  report  does  not  contain  tlie  names  of  parents 
and  guardians  of  children  in  said  district,  as  required  by  the  act. 

From  this  decision  one  of  the  commissioners  dissented.  The 
trustees  state  that  they  were  newly  elected  last  spring ;  that  on 
being  elected  it  was  not  made  known  to  them  that  the  annual 
report  had  not  been  made ;  that  as  soon  as  the  omission  was 
known  the  most  prompt  measures  were  adopted  to  remedy  the 
defect ;  that  the  report  was  made  out  and  placed  in  the  hands  of 
the  town  clerk  on  the  tenth  of  April,  and  before  the  commission- 
ers had  met  to  apportion  the  public  money.  The  commissioners 
met  on  the  first  of  July. 

The  trustees  further  state,  in  relation  to  the  second  objection, 
that  they  obtained  the  school  act  from  the  town  clerk,  and  that 
the  act  requiring  a  list  of  the  parents  and  guardians  of  children 
was  not  contained  in  the  law  which  they  received  from  the 
clerk. 

Two  of  the  commissioners  concur  in  the  statement  made  out 
by  the  trustees  :  it  is  therefore  taken  as  embracing  all  the  facts 
which  are  necessary  in  a  decision  of  this  question. 

The  ultimate  object  of  the  school  system  is  to  secure  to  each 
school  district  in  the  state  a  rateable  proportion  of  the  public 
money  as  an  inducement  and  encouragement  to  the  employ- 
ment of  competent  instructors,  and  the  estabUshment  and  con- 
tinuance of  good  schools.  To  effect  this  object,  regulations,  and 
a  strict  observance  of  them,  are  necessary. 

But  where  the  inhabitants  of  a  district  have  complied  with  all 
the  substantial  requirements  of  the  law,  although  the  trustees 
may  have  omitted  some  fact,  it  is  better  to  allow  the  report  to  be 
corrected,  than  to  deprive  a  district  of  its  equitable  portion  of  the 
school  moneys :  For  the  deprivation  falls  on  the  inhabitants  of 
the  district,  and  they  have  complied  with  the  conditions  of  the 
law  in  fact,  although  their  trustees  have  not  in  form.  If  the 
report  had  not  been  furnished  before  the  commissioners  met,  the 
money  would  have  been  apportioned,  and  the  district  would 
have  been  without  remedy  ;  the  other  districts  being  interested  in 
having  a  prompt  distribution  of  the  money.  But  this  report 
seems  to  have  been  made  before  the  commissioners  met  to  distri- 
bute the  money,  and  therefore  could  not  have  occasioned  delay 
or  worked  an  injury  to  the  other  districts  of  the  town. 

The  second  objection  relates  to  an  omission  of  the  names  of 
the  parents  and  guardians  of  the  children  between  5  and  15, 
agri-eeabl}^  to  an  amendment  of  the  school  act,  passed  in  1823. 


SUPERINTENDENT    OF   COMMON    SCHOOLS.  11 

This  amendment  has  not  been  distributed  to  the  school  districts, 
and  as  the  trustees  were  newly  elected,  and  called  upon  the  town 
clerk  for  the  law,  and  as  he  gave  them  the  "act  for  the  support 
of  common  schools"  published  and  distributed  by  order  of  the 
Superintendent,  they  had  a  r^ht  to  suppose  that  this  act  con- 
tained all  the  law  on  the  subject ;  and  it  would  be  unreasonable 
that  a  district  should  lose  its  rights  for  an  omission  under  such 
circumstances. 

The  object  of  requiring  the  names  of  parents  and  guardians, 
is  to  enable  the  commissioners  to  test  the  accuracy  of  the  num- 
ber of  children  returned  by  trustees :  without  this,  where  con- 
troversies existed  as  to  the  lines  of  districts,  the  same  children 
would  be  returned  by  two  sets  of  trustees,  and  the  reports  could 
not  be  impeached.  By  giving  the  names,  a  remedy  is  furnished 
for  such  difficulties.  In  the  csise  of  .district  No.  1,  the  accuracy 
of  the  list  of  children  is  not  questioned,  and  the  rights  of  other 
districts  are  not  prejudiced  by  this  omis^on  to  give  the  names  of 
parents. 

Under  all  the  circumstances  of  this  case,  it  is  decided,  that 
the  report  of  the  trustees  of  district  No.  1  in  Athens,  be  accepted 
by  the  commissioners,  and  that  said  district  is  entitled  to  its  just 
proportion  of  the  school  money. 

The  trustees  of  school  district  No.  4  in  the  town  of 
Orangetown,  ex  parte-. 

None  but  children  residing  in  a  school  district  can  of  right  be  benefitted  by  the 
public  money. 

But  if  children  not  residing  in  the  district  are  admitted  into  the  school,  their  pa- 
rents should  be  apprised  of  the  conditions  on  which  they  are  received. 

This  was  an  application  to  the  Superintendent  for  his  direc- 
tion on  the  following  case:  An  inhabitant  of  school  district  No. 
4  in  the  town  of  Orangetown,  sent  to  the  district  school  three  of 
his  grand  children,  who  resided  with  their  father  in  the  state  of 
New- Jersey,  near  the  line  of  the  district ;  the  grand  parent,  who 
owned  about  one  fourth  of  the  taxable  property  of  the  district, 
holding  himself  responsible  for  their  tuition. 

By  A.  C.  Flagg,  July  27,  1826.  The  question  presented 
by  your  letter  of  the  20th  is,  whether  children  residing  in  an- 
other state,  and  not  incorporated  in  the  district,  can  participate 
in  the  public  money.  There  is  no  provision  in  the  law  to  ex- 
tend the  benefit  to  any  except  resident  children  of  the  district. 
Indeed  the  trustees  can  exclude  all  children  except  those  who 
are  residents  of  the  district,  even  from  attending  the  school.  In 
the  exposition  of  the  school  act,  page  35,  Mr.  Hawley  says, — 
"  If  children  not  residing  in  the  district  be  permitted  by  the  trus- 
tees to  attend  their  school,  as  such  permission  might  have  been 


12  CASES    DECIDED   BY   THE 

withheld,  it  may,  and  ought  if  granted,  to  be  on  condition  that 
no  part  of  the  pubhc  money  shall  be  appHed  for  their  benefit." 

But  in  the  case  presented  in  district  No.  4  in  Orangetown,  it 
appears  that  the  trustees  granted  permission  to  non-resident  chil- 
dren to  attend  the  school,  on  the  application  of  a  resident  and 
taxable  inhabitant  of  their  own  district,  and  without  any  condi- 
tions, save  those  which  were  common  to  all  the  children  of  the 
district.  The  school  is  closed,  and  you  are  now  to  apply  the 
pubhc  money  and  collect  the  residue  of  the  teacher's  wages  from 
the  inhabitants  who  are  liable  therefor.  The  public  money  is 
paid,  as  far  as  it  goes,  towards  extinguishing  the  sum  total  of 
tuition  expenses  for  the  district.  The  parent  of  the  children  be- 
ing out  of  the  state,  has  no  claim  to  any  benefit  from  the  school 
money;  and  if  the  children  as  a  matter  of  favor  had  been  ad- 
mitted on  his  apphcation,  he  would  have  been  bound  to  pay  the 
full  expense  of  tuition.  But  he  is  out  of  your  jurisdiction,  and 
cannot  be  taxed ;  and  indeed  he  has  made  no  contract  with  the 
trustees,  and  is  not  on  any  principle  expected  or  required  to  pay. 
The  legal  claim  of  the  trustees  is  against  the  grand-father  of  the 
children ;  he  made  the  contract,  and  he  is  bound  to  pay  accord- 
ing to  the  conditions  of  his  contract.  He  being  a  resident  of 
the  district,  and  as  the  trustees  admitted  scholars  on  his  re- 
quest, without  conditions,  common  usage  would  guarantee  to 
him  the  conditions  which  were  usual  for  all  the  taxable  inhabi- 
tants of  the  district.  The  justice  of  having  the  conditions  es- 
tablished at  the  commencement  of  the  school,  if  any  discrimi- 
nation was  to  be  made,  is  obvious :  it  might  have  been  one  in- 
ducement with  the  grand-father,  in  becoming  accountable  for 
the  tuition  of  the  children,  that  he  could  give  them  the  advan- 
tages of  school  privileges  which  he  had  been  taxed  in  common 
with  others  to  acquire.  Then  was  the  time  for  the  trustees  to 
inform  him  that  the  children  could  not  be  admitted  to  the  privi- 
leges of  the  school,  on  his  request,  unless  he  would  pay  full  tui- 
tion without  the  benefit  of  the  public  money.  Unless  there  ex- 
ists some  special  cause,  the  tmstees  must  assess  all  the  tax  pay- 
ing citizens  of  the  district  at  the  same  rate  per  scholar,  and  it 
would  be  unfair  to  apply  special  conditions  to  the  prejudice  of 
the  interests  of  an  individual  unless  the  terms  were  made  known 
to  him  at  the  time  the  contract  or  apphcation  was  made  for  the 
tuition  of  the  children  in  question. 

The  admission  of  non-resident  scholars  is  an  act  of  favor  al- 
together. There  is  no  law  for  admitting  them  at  all ;  district^ 
and  trustees  accede  to  it  as  a  matter  of  courtesy  or  accommoda- 
tion, and  the  trustees  can  dictate  the  conditions ;  they  can  re- 
quire foreign  scholars  to  pay  full  price  for  schoohng,  and  also  for 
house  rent ;  but  having  in  this  case  exacted  none  of  these  con- 
ditions, Mid  having  GonseBted  that  the  children  should  be  mem- 


#., 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  13 

bers  of  their  school,  on  the  application  and  responsibility  of  one 
of  the  inhabitants  of  their  own  district,  they  can  only  make,  out 
an  equal  assessment,  according  to  the  scholars  sent,  upon  all  the 
tax  paying  inhabitants  in  the  same  district. 

In  future,  as  there  is  no  law  in  favor  of  the  admission  of  scho- 
lars from  another  state,  the  trustees  ought  not  to  admit  them, 
unless  upon  such  conditions  as  will  protect  most  scrupulously  the 
interests  of  residents  of  the  district. 

The  Commissioners  of  Common  Schools  of  the  town 
of  Burns,  ex  parte. 

On  the  division  of  a  town  and  the  formation  of  a  new  one,  the  commissioners 
of  common  schools  of  the  new  town  cannot  disturb  the  organization  of  a 
school  district  lying  partly  in  both,  without  the  concurrence  of  the  commis- 
sioners of  the  other. 

Inhabitants  of  school  districts  have  not  power  to  alter  the  boundaries  of  their 
districts. 

Commissioners  of  common  schools  are  not  authorized  to  change  the  site  of  a  dis- 
trict school-house,  although  their  consent  to  such  change  is  necessary  in  some 
cases. 

This  was  an  application  from  the  commissioners  of  common 
schools  of  the  town  of  Burns  for  the  decision  of  the  Superinten- 
dent upon  their  own  proceedings  in  relation  to  school  district  No. 
1,  lying  partly  in  that  town  and  partly  in  the  adjoining  town  of 
Dansville.  By  an  act  passed  the  17th  March,  1826,  a  part  of 
the  town  of  Ossian  was  set  off  and  erected  into  a  new  town  by 
the  name  of  Burns.  By  this  division,  school  district  No.  1,  lying 
partly  in  the  town  of  Ossian  and  partly  in  the  town  of  Dans- 
ville, became  a  part  of  the  town  of  Burns  and  Dansville,  all  the 
territory  of  the  district  belonging  to  the  town  of  Ossian  being  in- 
cluded in  the  bounds  of  the  new  town.  Soon  after  the  division, 
the  comrnl-^sioners  of  common  schools  of  the  new  town  met,  to- 
gether with  the  inhabitants  of  school  district  No.  1,  for  the  pur- 
pose of  re-organizing  the  district.  The  commissioners  resolved 
that  the  connexion  with  Dansville  should  be  dissolved ;  and  at 
a  subsequent  meeting  of  the  inhabitants  of  the  district,  it  was 
declared  by  a  resolution  to  that  effect,  that  four  persons  residing 
in  Dansville,  and  formerly  constituting  a  part  of  that  district, 
were  no  longer  members  of  it.  The  commissioners  of  the  town 
of  Burns  at  the  same  time  selected  a  new  site  for  the  district 
school -house. 

By  A.  C.  Flagg,  Avgust  14,  1826.  It  seems  that  district 
No.  1  was  originally  formed  from  parts  of  Dansville  and  Ossian, 
(now  Burns,)  and  your  inquiry  is,  "had  not  the  new  town  of 
Burns  a  right  to  form  themselves  into  districts  without  reference 
to  the  town  of  Dansville  ?"  No.  District  No.  1  was  originally 
formed  by  the  concurrence  of  a  major  part  of  the  commissioners 
of  Dansville  and  Ossian  ;  and  it  is  necessary  to  have  a  concur- 


14  CASES    DECIDED    BY    THE  M; 

rence  of  the  same  authority  to  dissolve  as  to  form  a  district. 
Burns  stands  in  the  same  relation  to  district  No.  1  that  Ossian 
did,  and  its  commissioners  could  not  dissolve  the  connexion  with 
Dansville  without  giving  notice  to  the  commissioners  of  that 
town.  If  the  commissioners  refused  or  neglected  to  attend,  then 
the  commissioners  of  Burns  might  have  proceeded  to  dissolve 
the  connexion,  as  provided  by  the  6th  section  of  the  amendment 
to  the  school  act  of  1822.* 

The  vote  in  relation  to  admitting  or  excluding  the  four  per- 
sons in  Dansville  is  of  no  consequence.  The  district  could  not 
vote  away  their  rights,  and  if  they  were  not  legal  members  of 
the  district,  a  vote  could  not  make  them  so.  The  12th  section 
of  the  act  of  1819,t  gives  to  the  commissioners  the  sole  power 
of  forming,  as  well  as  altering  and  regulating  school  districts; 
but  in  this  case  the  district  meeting  usurped  that  authority,  when 
they  determined  to  vote  four  members  out  of  the  district. 

"Were  the  acts  of  the  commissioners  legal  els  to  fixing  the 
site  of  the  school-house,  contrary  to  the  voice  of  the  district?" 

The  20th  section  of  the  act  of  1819t  authorizes  the  inhabi- 
tants of  the  district,  or  a  majority  of  such  of  them  as  shall  be 
present  at  any  district  meeting  legally  convened,  to  fix  on  the  site 
of  the  school-house.  A  majority  can  designate  the  site ;  but  after 
it  is  fixed,  and  a  house  built,  even  a  majority  of  a  regular  meeting 
cannot  remove  the  site,  without  a  certificate  from  a  major  part 
of  the  commissioners  that  such  removal  is  necessary  and  proper. 
The  proviso  to  the  20th  section§  is  designed  to  give  the  commis- 
sioners a  negative  upon  the  district  vote  under  a  particular  state 
of  things.  They  (the  commissioners)  have  no  authority  to 
change  the  site  of  a  school-house ;  they  can  assent  to  the 
change  or  object  to  it.  The  commissioners  ought  not  to  inter- 
fere in  changing  the  site  of  a  school-house,  unless  requested  by 
a  vote  of  the  district :  and  on  such  request,  which  would  be  an 
expression  of  the  wishes  of  a  majority,  the  commissioners  are  to 
determine  whether  it  is  necessary  and  proper  to  have  the  change 
take  place."|| 

♦See.  6.S,  page  479,  1  vol.  R.  S. 

!Snb.  1,  sec.  20,  page  470,  1  vol.  R.  S. 
Sec.  61,  page  478,  1  vol.  R.  S. 
Act  of  17  Feb.,  1831,  chap.  44. 
The  law  in  relation  *o  the  removal  of  school-houses  and  change  of  their  sites, 
has  been  amended  in  several  important  respects  since  this  decision  was  pro- 
nounced, (see  sec.  70  in  the  appendix  to  this  volume,)  though  the  principles  of 
the  decision,  so  far  as  the  right  of  commissioners  of  common  schools  to  change 
the  site  of  a  school-house  is  concerned,  are  unaltered  hy  subsequent  legislation. 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  15 

A.  B^  an  inhabitant  of  school  district  No.  7  in  the 
town  of  Schoharie,  ex  parte. 

In  making  out  rate-bills  to  provide  for  the  payment  of  teachers'  wages,  inhabi- 
tants of  school  districts  can  only  be  charged  for  so  much  time  as  their  children 
have  actually  attended  school. 

Superintendent  cannot  interfere  with  proceedings  before  justices  of  the  peace  ; 
but  his  opiaion  will  be  given  with  a  view  to  the  amicable  adjustment  of  con- 
troversies. 

This  was  an  application  to  the  Superintendent  for  his  opinion 
upon  a  statement  of  facts  contained  therein. 

By  A.  C.  Flagg,  September  9,  1826.  Your  letter  of  the 
8th  states  that  a  person  who  sent  his  children  to  a  school  in  dis- 
trict No.  7  in  Schoharie  for  two  months  and  a  half,  was  charged 
by  the  tiiistees  in  the  warrant  issued  according  to  a  vote  of  the 
district  meeting  for  teachers'  wages,  with  six  months'  tuition. 
On  the  state  of  facts  presented  in  your  letter,  the  trustees  were 
wrong.  The  26th  section,*  to  which  you  refer,  authorizes  the 
trustees  "  to  ascertain  and  settle  by  examination  of  the  returns 
or  school  lists  of  their  teacher  by  him  for  that  purpose  to  be  kept, 
and  certified  on  oath  to  be  just  and  true,  the  number  of  days  for 
which  each  person  not  exonerated  shall  be  liable  to  pay  for  in- 
struction," and  to  make  out  a  rate-bill  accordingly.  For  what 
purpose  is  the  teacher  required  to  keep  a  list,  and  the  trustees  to 
examine  that  list,  unless  for  the  purpose  of  ascertaining  from 
it  the  number  of  days  which  each  person  has  sent  to  school, 
and  to  charge  them  in  proportion  to  the  number  of  days  actually 
sent  ?  The  trustees  under  the  authority  given  them  to  "  ascer- 
tain and  settle,"  are  not  to  do  it  arbitrarily,  but  according  to  fair 
principles  "  by  examination  of  the  school  lists."  There  could 
be  no  justice  in  charging  a  person  for  100  days,  who  had  sent 
only  50  ;  and  it  would  be  extremely  oppressive  if  trustees  could 
arbitrarily  charge  a  man  with  six  mcmths  schooling,  if  he  com- 
menced sending  and  stopped  after  two  months. 

The  demand  of  the  bill  at  the  time  of  withdrawing  the  scho- 
lars is  of  no  consequence.  The  trustees  could  not  make  out  the 
bill  until  the  expiration  of  the  school.  But  when  they  did  make 
it  out  they  should  have  taxed  the  individual  only  for  the  num- 
ber of  days  during  which  he  actually  sent  to  school. 

You  say. that  a  suit  has  been  commenced,  and  that  my  opin- 
ion will  prevent  litigation,  &c.  With  this  view  it  is  given. 
There  is  no  appeal,  as  you  are  doubtless  aware,  from  a  suit  at 
law  to  the  Superintendent ;  and  1  am  reluctant  to  give  opinions 
in  a  case  where  a  suit  is  pending.  At  all  events,  opinions  thus 
given  ought  not  to  influence  the  case  before  the  magistrates.  If 
the  parties  can  agree  to  take  their  cause  out  of  court,  and  sub 
mit  all  the  facts,  I  will  cheerfiiUy  decide  the  case. 

•  Sub.  12,  sec.  76,  page  482,  1st  vol.  R.  S. 


16  CASES    DECIDED    BY   THE 

The  Trustees  of  school  district  No.  1  in  TfieTown  of 
Middlefield  against  the  Commissioners  of  Com- 
mon Schools  of  said  town. 

The  acts  of  an  officer  de  facto,  zre  valid,  so  far  as  the  public  and  third  persons 
are  concerned. 

This  was  an  appeal  from  the  trustees  of  school  district  No.  1 
in  the  town  of  Middlefield,  from  the  proceedings  of  the  commis- 
sioners of  common  schools  of  said  town  in  setting  off  certain  in- 
habitants to  other  districts.  The  ground  of  objection  taken  by 
the  appellants  was  that  one  of  the  two  commissioners  by  whom 
the  alteration  was  made,  did  not  file  his  acceptance  of  the  office  of 
commissioner  until  after  the-  expiration  of  15  days  from  his  elec- 
tion, and  until  after  the  performance  of  the  official  act  from 
which  the  appeal  was  brought. 

By  A.  C.  Flagg,  October  3,  1826.  The  principle  involved 
in  this  application  has  been  decided  by  the  supreme  court  in  the 
case  of  the  People  vs.  Collins,  7th  Johnson's  Reports,  page  549. 
In  that  case  the  court  say,  "  The  allegation  is  not  material  that 
the  commissioners  had  not  caused  their  oath  of  office  to  be  filed 
in  the  town  clerk's  office.  If  the  commissioners  of  highways 
acted  without  taking  the  oath  required  by  law,  they  were  liable 
to  a  penalty;  or  the  town  upon  their  default,  might  have  pro- 
ceeded to  a  new  choice  of  commissioners.  But  if  the  town  did 
not,  the  subsequent  acts  of  the  commissioners  as  such,  were 
valid  as  far  as  the  rights  of  third  persons  and  of  the  public  were 
concerned  in  them." 

(anonymous.) 

Persons  leasing  specific  portions  of  a  lot  are  to  be  taxed  for  so  much  as  they  lease. 
The  agent  or-srrvant  of  the  owner  must  reside  on  the  lot  in  order  to  subject 
such  owner  to  taxation. 

By  A.  C.  Flagg^  October  18,  1826.  "  A.  owns  a  farm  in 
district  No.  24  of  200  acres,  about  100  improved  :  he  resides  in 
No.  3:  he  leases  two  small  lots  and  houses,  and  improves  the 
remainder  himself  and  by  his  hired  men  living  with  him." 

1.  The  houses  and  lots  leased  should  be  assessed  to  the  occu- 
pants ;  as  they  lease  specific  portions  of  the  same,  they  are  ten- 
ants ;  and  Mr.  Hawley  in  his  exposition  of  the  25th  section,  p. 
33,  school  act,  says  in  relation  to  making  non-residents  of  the 
district  taxable  therein,  that  "  it  does  not  apply  to  landlords  who 
have  tenants  thereon."  If  the  tenant  ought  not  to  pay,  he  has 
his  redress  upon  the  landlord  by  the  32d  section  of  the  act  of 
1819.* 

•Sec  83,  page  483,  vol.  1  R.  S. 


% 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  17 

2,  If  A.  "  improves  and  occupies  by  his  agent  or  servant"  the 
remainder  of  tlie  farm,  then  lie  should  be  taxed  for  it ;  and  by 
the  25th  section  the  vahiation  is  to  be  taken  from  the  then  last 
assessment  roll  of  the  town ;  in  which  variation  the  wood-land 
is  of  course  included. 

Mr.  Yates,  in  the  13th  decision,  p.  37,  has  decided  that  a  non- 
resident, although  he  may  cultivate  a  farm  himself,  cannot  be 
taxed  unless  the  farm  is  occupied  at  the  time  by  his  agent  or 
servant.  By  this  occupancy  he  probably  meant  a  residence  on 
the  lot.  In  this  case  there  has  not  been  such  an  occupancy  as 
would  render  the  owner  liable  to  taxation  for  the  remainder  of 
the  farm  ;  and  if  the  tenants  have  leases  for  specific  parts  of  the 
iarm,  they  can  be  assessed  only  for  such  parts  as  are  covered  by 
their  leases- 
Asa  Philips  against  the  Trustees  of  school  district 
No.  2  in  the  tov^^n  of  Granby. 

Rule  of  taxation  applied  to  a  particular  case. 

This  case  was  submitted  by  the  parties. 

By  A.  C.  Flagg,  November  22,  1826.  In  the  case  submit- 
ted by  Asa  Philips  and  the  trustees  of  school  district  No,  2,  Gran- 
by, Oswego  county,  it  appears  that  the  said  Phihps  owns  two- 
fifths  of  lot  No  75  in  Granby,  on  which  are  two  houses,  which 
are  occupied  by  two  men  who  are  employed  by  Mr.  Philips  as 
sawyers  in  mills  of  his  adjoining  the  premises,  Mr.  Philips  resi- 
ding in  another  town  and  county.  The  25th  section  of  the  act 
of  1819*  provides  that  every  person  owning  or  holding  any  real 
estate  lying  within  such  district,  who  shall  improve  and  occupy 
the  same  by  his  agent  or  servant,  shall  be  taken  and  consideral 
a  taxable  inhabitant  of  such  district,  (fcc.  Where  a  family  resides 
upon  a  lot,  it  is  tp  be  presumed  that  there  are  scholars  to  enjoy 
the  benefits  of  a  school,  and  the  residence  of  a  family  on  the  lot 
is  such  an  occupancy  as  to  justify  taxation.  If  tiie  individual 
hires  the  premises,  and  is  in  the  character  of  a  tenant,  then  he 
is  to  be  taxed  personally ;  but  in  this  case  Mr.  Philips  states 
that  he  employs  these  men  as  sawyers.  It  is  therefore  decided 
that  the  trustees  are  correct  in  assessing  Mr.  Philips  for  his  in- 
terest in  lot  No.  75,  in  school  district  No.  2,  Granby, 

♦Sec.  77,  page  482,  vol.  1,  R.  S. 


18  CASES    DECIDED   BY    THE 

The  Clerk  of  school  district  No.  9  in  the  town  of 
New-Haven,  ex  parte. 

A  new  district  being  form^,  a  notice  to  each  inhabitant  erf"  the  time  and  place 
for  the  first  meeting  is  sufficient. 

This  was  an  application  from  the  clerk  of  scho(J  district  No. 
9  in  the  town  of  New-Haven,  for  the  direction  of  the  Superin^ 
tendent  in  respect  to  a  notice  given  in  the  manner  explained  in 
the  subjoined  opinion. 

By  A.  C.  Flagg,  December  6,  1826.  In  warning  a  school 
meeting  in  the  first  organization  of  the  district,  a  person  hable 
to  pay  taxes  notified  the  inhabitants  that  they  were  set  off  into  a 
district,  and  of  the  time  and  place  of  the  meeting.  This  in  my 
opinion  was  a  sufficient  notice.  The  13th  section  of  the  act  of 
1819*  says  the  commissioners  shall  give  a  written  notice  to  some 
inhabitant  liable  to  pay  taxes,  "describing  such  district,"  &-c. 
It  is  necessary  for  the  person  notifying  the  inhabitants  to  have 
the  district  described,  in  order  that  he  may  know  whom  to  notify. 
The  inhabitant  notified  of  the  school  meeting  has  no  necessity 
for  knowing  who  else  is  notified.  The  notice  is  to  him  as  an  in- 
dividual. The  same  section  defines  the  extent  of  this  notice  to 
individuals  by  saying  when  the  person  is  absent  from  home,  he 
is  to  be  warned  by  leaving  at  his  place  of  abode  a  copy  of  the 
commissioners'  notice.  "  or  of  so  much  thereof  as  relates  to  the 
time  and  place  of  such  meeting."  This  is  clear  and  conclusive. 
It  could  not  be  necessary  that  a  personal  notice  should  be  more 
full  and  particular  than  is  required  for  a  notice  left  in  the  absence 
of  the  peison  notified. 

Josiah  Hilton  and  others  against  the  inhabitants  of 
school  district  No.  3  in  the  town  of  Erwin. 

A  person  taking  up  his  residence  in  a  school  district,  becomes  by  that  act  a  fo- 

ter,  if  he  has  the  requisite  qualifications. 
If  in  balloting  for  district  officers  the  number  of  ballots  exceeds  the  number  of 

voters,  a  second  baU«>ting  should  take  place. 

This  was  an  appeal  by  Josiah  Hilton  and  others,  inhabi- 
Iftnts  of  school  district  No.  3  in  the  town  of  Erwin,  from  the 

*  Sec  55,  page  477,  vol.  1,  R;  S.  In  the  case  of  King  vs.  Grout,  7  Wen- 
dell, 341,  decided  in  1831,  the  Supreme  Court  held  that  it  was  not  indispensa- 
bly necessary  to  insert  the  boundaries  of  the  district  in  a  notice  given  by  com- 
missioners of  common  schools  for  a  meeting  for  the  election  of  officers  in  school 
district  No.  1  in  the  town  of  Ogden  under  circumstances  somewhat  similar  to 
those  which  occurred  in  school  district  No.  9  above  reported;  though  it  is  sup- 
posed that  the  notice  in  the  case  decided  by  the  Supreme  Court  was  given  in 
consequence  of  a  rc-organization  of  the  school  district,  and  when  there  was  no 
competent  authority  existing  within  it  to  call  a  special  district  meeting. 


SUPERINTENDENT    OF   COMMON    SCHOOLS.  19 

proceedings  of  an  annual  meeting  in  said  district,  at  which  offi- 
cers for  the  ensuing  year  were  chosen.  The  objections,  upon 
the  ground  of  which  the  interposition  of  the  Superintendent  was 
sought,  were; 

1st.  That  one  person  voted  at  the  meeting  who  had  come  in- 
to the  district  a  short  time  before,  and  who  had  not  the  amount 
of  property  necessary  to  entitle  him  to  vote ;  ^, 

2nd.  That  in  counting  the  ballots,  they  were  found  to  be  one 
more  in  number  than  the  persons  present. 

By  A.  C  Flagg,  February  22,  1827.  If  the  person  who  is 
alleged  by  the  appellants  not  to  have  been  entitled  to  vote,  had 
actually  taken  up  his  residence  in  the  district,  and  had  the  pro- 
perty required  by  law,  he  was  a  voter,  although  he  might  have 
been  there  only  a  week.  If  he  was  not  a  taxable  inhabitant, 
he  might  have  been  prosecuted  for  the  penalty,  provided  by  law, 
before  a  magistrate,  before  whom  access  to  all  the  facts  could  be 
had.  The  testimony  before  the  Superintendent  is  too  vague  in 
reference  to  this  point  to  justify  an  interference  with  the  pro- 
ceedings on  that  ground. 

It  appears  that  there  was  one  more  ballot  than  there  were  per- 
sons present  at  the  meeting.  The  most  satisfactory  proceeding 
in  such  a  case  would  have  been  to  have  ballotted  over  again; 
and  this  ought  to  have  been  done  A  double  ballot  being  put 
in,  however,  does  not  destroy  an  election.  When  the  ballots 
and  poll-lists  do  not  agree,  (in  general  elections,)  the  excess  of 
ballots  are  drawn  before  they  are  opened :  but  the  election  or  the 
votes  of  the  town  are  not  vitiated  by  a  disagreement  between 
the  poll-list  and  the  ballots.  It  is  stated  in  the  affidavit  of  the 
moderator  that  the  persons  declared  elected,  had  a  majority  after 
deducting  the  ballot  alluded  to. 

Under  all  the  circumstances  of  this  case,  it  is  decided  that  the 
officers  chosen  in  district  No.  2  in  the  town  of  Envin,  at  the  an- 
nual meeting,  from  the  proceedings  of  which  relief  is  sought, 
are  the  legal  officers  of  said  district,  and  that  the  appeal  be  dis- 
missed. 

The  Trustees  of  school  district  No.  14  in  the  town 
of  Cazenovia,  ex  parte. 

If  the  district  clerk  refuses  to  give  notice  of  a  meeting  of  the  inhabitants,  the 
notice  may  be  given  by  the  trustees. 

If  the  collector  refuses  to  give  a  bond,  his  office  becomes  vacated,  and  the  trus- 
tees may  make  a  new  appointment  r 

This  was  an  application  from  the  trustees  of  school  district 
No.  14  in  the  town  of  Cazenovia,  for  the  direction  of  the  Su- 
perintendent with  respect  to  the  following  cases : 


# 


20  *-^''-'*^'' CASES    DECIDED    BY    THE 

1st.  The  district  clerk  when  required  by  them  to  give  notice 
of  a  meeting  of  the  inhabitants,  refused  to  act. 

2nd.  The  collector  of  the  district,  on  receiving  a  warrant  for 
the  collection  of  a  tax,  declined  giving  a  bond  for  the  faithful 
discharge  of  his  duties. 

By  A.  C.  Flagg,  March  12,  1827.  By  the  proviso  to  the 
20th  section  of  the  act  of  1819,  the  trustees  are  authorized  to 
call  special  meetings.  By  the  23d  section*  it  is  made  the  duty 
of  the  clerk  to  notify  such  meetings  whenever  they  shall  be  call- 
ed by  the  trustees ;  and  in  case  of  the  absence  or  incapacity  of 
the  clerk,  tthe  trustees  themselves  may  (and  it  is  declared  their 
duty  to)  give  notice  to  the  inhabitants  of  the  district  of  a  special 
meeting.  If  the  clerk  refused  to  notify  the  meeting,  then  it 
might  be  done  by  the  tiustees  or  one  of  them.  Even  for  a  want 
of  notice  to  a  part  of  the  inhabitants,  a  meeting  shall  not  be 
deemed  illegal,  unless  the  omission  to  give  such  notice  was  wil- 
ful or  designed,  (see  last  clause  of  the  proviso  to  the  20th  section, 
act  of  1819.t) 

By  the  24th  section  of  the  school  act,  the  trustees  can  require 
a  bond  from  the  collector,  "  and  in  case  of  his  refusal  or  neglect 
to  execute  and  deliver  such  bond  within  such  time,  not  less  than 
ten  days,  as  shall  be  allowed  to  him  for  that  purpose  by  the 
trustees,  his  office  of  collector  shall  thereby  be  vacated,  and 
thereupon  it  shall  and  may  be  lawful  for  the  said  trustees,  or  the 
major  part  of  them,  to  appoint  any  other  person  residing  in  their 
district  to  supply  such  office  so  vacated."§ 

(anonymous.) 

If  the  commissioners  of  common  schools  know  a  district  report  to  be  erroneous, 
the  public  money  may  be  withheld,  and  the  case  submitted  to  the  Superin- 
tendent. 

By  A.  C.  Flagg,  March  16,  1827.  If  the  trustees  of  a 
school  district  make  a  false  report,  they  are  liable  to  a  fine  of 
twenty-five  dollars,  under  the  28th  section  of  the  school  act.H 
Commissioners  of  common  schools  cannot  actually  know  a  re- 
port to  be  erroneous,  unless  they  have  positive  proof  of  the  fact. 
If  such  proof  were  to  be  presented  to  them,  they  might  withhold 
the  public  money  until  the  facts  could  be  presented  to  the  Su- 
perintendent for  his  decision. 

•  Sub.  2,  sec.  74,  page  480,  vol.  1,  R.  S. 
t  Sub.  2,  sec.  75,  page  481,  vol.  1,  R.  S.    X  Sec.  63,  page  478,  vol.  1,  R  S. 
§  Sec.  107,  page  487,  vol.  1,  R.  S.        t|  Sec.  96,  page  485,  vol.  1,  R.  S. 


.<»!  "ITU  <^  i-wj  u^nivM] 


%. 


SUPERINTENDENT    OP    COMMON    SCHOOLS.  21 

The  Trustees  of  school  district  No.  6  in  the  town  of 
Canajoharie,  ex  parte. 

A  tax  may  be  levied  in  a  school  district  to  build  a  wood-house  and  necessary. 

This  was  an  application  to  the  Superintendent  to  decide 
'*  whether  a  school  district  is  authorized  to  raise  money  by  tax 
to  build  a  wood-house  and  such  other  appendages  as  common 
decency  requires  should  be  attached  to  a  school-house  ?" 

By  A.  C.  Flagg,  Maij  5,  1827.  The  20th  section  of  the 
act  of  1819  gives  authority  to  the  taxable  inhabitants  of  school 
districts  to  vote  such  a  tax  as  a  majority  of  them  shall  deem 
sufficient  to  procure  a  school-house,  and  to  furnish  it  with  "  ne- 
cessary fuel  and  appendages."*  Both  the  conveniences  referred 
to  in  the  case  presented  to  me  are  to  be  regarded  as  necessary 
appendages  to  a  school-house,  and  the  inhabitants  of  the  district 
have  an  undoubted  right  to  provide  them. 

■■> 

The  Town  Clerk  of  the  town  of  De  Ruyter,  ex  parte. 

The  proceeds  of  lands  set  apart  for  the  support  of  the  common  schools  in  a  par- 
ticular town,  must  be  applied  exclusively  for  the  benefit  of  the  inhabitante  of 
the  town  to  which  the  lands  belong. 

This  was  an  application  for  the  direction  of  the  Superinten- 
dent with  regard  to  the  disposition  to  be  made  of  the  rent  of  a 
school  lot  belonging  to  the  town  of  Fabius,  in  Onondaga  coun- 
ty, a  portion  of  the  rent  having  been  apportioned  to  a  school  dis- 
trict lying  partly  in  that  town  and  partly  in  the  town  of  De 
Ruyter,  Madison  county,  which  had  no  local  fund  yielding  an 
annual  income.  The  question  submitted  to  the  Superintendent 
was,  whether  the  amount  so  apportioned  to  the  joint  district  was 
to  be  regarded  as  a  common  fund,  to  be  applied  for  the  benefit 
of  the  entire  district,  or  whether  it  was  to  be  applied  exclusively 
for  the  benefit  of  the  inhabitants  of  that  part  of  the  district  lying 
within  the  boundaries  of  the  town  of  Fabius.  r 

By  A.  C.  Flagg,  May  5,  1827.  The  third  section  of  the 
act  relative  to  the  school  lands  passed  March  23,  1798,  provides 
that  the  money  arising  from  those  lands  '•  shall  be  appHed  to  the 
use  of  schools  or  support  of  the  gospel,  in  the  original  townships 
as  surveyed,  in  which  such  lots  shall  be  situated,  and  for  no 
other  purpose."  This  law  has  a  special  application  to  the  funds 
derived  from  the  school  lands,  and  is  a  warrant  for  the  mode  of 
distribution  adopted  in  your  district.  Where  a  district  is  formed 
partly  from  a  town  having  this  local  fund,  and  partly  from  a 
town  having  none,  the  only  way  of  carrying  the  act  of  1798  in- 


*  Sub.  5,  sec.  61,  page  478,  vol.  1,  R,  S. 


22  •*^<W«^'CASES    DECIDED    BY    THE 

to  effect  is  for  the  trustees  to  make  out  separate  assessments  for 
the  residue  of  the  teacher's  wages,  if  any,  and  in  graduating 
the  assessment,  to  give  credit  to  the  inhabitants  of  Fabius  to  the 
amount  derived  from  their  local  fund,  as  has  been  done.  In 
cases  where  an  inequality  exists  in  towns  out  of  which  double 
districts  were  formed,  by  reason  of  fines  or  by  raising  double 
the  amount  of  school  money  in  one  town  and  not  in  the  other, 
<kc.,  the  amount  received  should  be  considered  a  common  fund 
for  the  use  of  all  the  inhabitants  of  the  district.  Suppose  al- 
so that  by  the  neglect  of  the  commissioners  the  public  money 
is  withheld  from  one  town.  Still  the  trustees  of  a  double  dis- 
trict would  pay  the  money  received  from  the  other  town  to  the 
teacher,  and  all  the  inhabitants  of  the  district  would  share  alike. 
The  exception  is  made  in  cases  which  fall  under  the  act  of 
1798.  Some  districts  are  formed  with  neighborhoods  in  other 
states,  and  in  such  cases  the  trustees  of  course  have  to  make 
out  two  assessments  for  teacher's  wages,  as  you  have  done. 
Where  a  district  is  formed  from  two  towns  or  counties,  the  offi- 
cers may  be  located  in  any  part  of  the  district.  County  and 
town  lines,  so  far  as  relates  to  the  district,  have  no  influence : 
the  district  lines  are  alone  material  in  what  relates  to  the  organi- 
zation and  government  of  the  district.  Where  districts  are  form- 
ed with  other  states,  the  law  has  specially  provided,  that  one 
trustee  at  least  shall  be  chosen  in  the  part  of  the  district  lying  in 
this  state,  (sec.  27*)  for  the  reason  that  the  other  part  of  the  dis- 
trict is  beyond  the  jurisdiction  of  the  state. 

(anonymous.) 

The  real  estate  of  ministers  of  the  gospel  is  exempt  from  taxation  to  a  certain 
amount,  only  when  occupied  by  them. 

By  A.  C.  Flagg,  Mly  7, 1827.  By  the  3rd  section  of  the 
actt  for  the  assessment  and  collection  of  taxes,  the  real  estate  of 
a  minister  of  the  gospel  is  exempt  from  taxation  to  a  ceitain  ex- 
tent, "  if  occupied  by  him."  In  the  case  of  Clark  Kenyon,  jun., 
as  I  understand  from  your  letter,  he  is  the  tenant  of  the  minis- 
ter, and  the  occupant,  and  therefore  liable  to  be  taxed  for  th« 
farm. 

•  Sec.  95,  page  486,  vol.  1,  R.  S.    t  Sub.  8,  sec.  4,  page  388,  vol.  1,  R.  S. 


,«ri>  i»8«a  ,I»  .%v»t  .8  .(jfua  • 


SUPERINTENDENT    OF    COMMON   SCHOOLS.  23 

The  inhabitants  of  joint  school  district  No.  15,  lying 
partly  in  the  town  of  Warwick,  and  partly  in  the 
town  of  Goshen,  against  the  Commissioners  of 
Common  Schools  of  said  towns. 

In  altering  school  districts  lying  partly  in  two  or  more  towns,  a  majority  of  the 
commissioners  of  each  town  must  concur. 

This  was  an  appeal  from  the  proceedings  of  the  commission- 
ers of  common  schools  of  the  towns  of  Warwick  and  Goshen, 
in  dividing  school  district  No.  15,  with  the  consent  of  only  one 
of  the  commissioners  of  the  former  town. 

By  A.  C.  Flagg,  November  13,  1827.  In  this  case  it  is  con- 
tended that  the  division  of  No.  15  is  invalid,  for  the  reason  that 
it  was  a  district  formed  from  parts  of  Goshen  and  Warwick,  and 
that  a  major  part  of  the  commissioners  of  each  town  did  not  as- 
sent to  the  division  of  the  old  district  No.  15.  It  appears  by  the 
affidavit  of  H.  M.  Hopkins,  one  of  the  c-ommissioners  of  Goshen, 
that  Mr.  Shepherd,  one  of  the  commissioners  of  Warwick,  dis- 
sented from  the  division,  and  "  contended  that  the  law  required 
the  consent  of  a  majority  of  the  commissioners  of  both  towns, 
(to  wit,  two,)  which  opinion  was  overruled,  and  he,  the  said 
Shepherd,  although  opposed  to  the  division,  signed  the  proceed- 
ings," &c 

William  Shepherd,  the  above  named  commissioner,  testifies, 
^  that  from  the  site  and  location  of  the  said  district,  he  is  entire- 
ly of  the  opinion  that  it  ought  not. to  be  divided,  and  that  he 
signed  the  proceedings  under  the  representation  that  his  with- 
holding his  name  could  make  no  difference,  if  the  construction 
of  the  law  by  the  other  commissioners  was  right ;  although  con- 
trary to  his  deUberate  and  decided  opinion  at  the  time."  It  ap- 
pears also  that  only  one  of  the  commissioners  of  Warwick  was 
in  favor  of  the  division,  and  that  he  and  the  three  commission- 
ers of  Goshen  constituted  the  body  which  voted  that  they  had  a 
right  to  act  for  the  two  towns.  No  district  can  be  formed  or  al- 
tered without  the  assent  of  two  at  least  of  the  commissioners  of 
the  town  in  whidi  the  district  is  situated.  In  the  formation  of 
double  districts,  the  commissioners  represent  their  respective 
towns ;  and  the  rights  of  those  whom  they  represent  cannot  be 
voted  away  by  commissioners  who  represent  the  inhabitants  of 
another  town.  The  law  does  not  authorize  the  question  to  be 
settled  by  a  joint  ballot  of  the  commissioners  of  two  or  more 
towns.  The  law  says,  "Whenever  it  may  be  convenient  and 
necessary  to  form  a  district  out  of  two  or  more  adjoining  towns, 
it  shall  and  may  be  lawful  for  the  commissioners  aforesaid,  or 
the  major  part  of  them,  from  each  of  such  adjoining  towns,  to 


M 


24  CASES    DECIDED    BY    THE 

form  such  district,  and  to  alter  and  regulate  the  same.'^*  It  is 
clear  from  the  language  of  this  act,  that  the  assent  of  a  major 
part  of  the  commissioners  of  each  town  interested  is  requisite  to 
form  or  alter  a  district.  It  is  satisfactorily  proved  tliat  although 
Mr.  Shepherd  signed  the  proceedings,  he  did  not  consent  to  the 
division  of  the  district,  and  this  fact  is  shown  by  the  witnesses 
of  both  parties.  The  resolution  which  was  adopted,  that  three 
commissionei-s  from  Goshen  and  one  from  Warwick,  had  a  right 
to  alter  the  district,  seems  to  show  that  Mr.  Shepherd  did  not 
conseat ;  and  hence  the  resolution  to  alter  it  without  his  con- 
sent. 

It  is  therefore  decided  that  the  proceedings  of  the  commission- 
ers, in  dividing  district  No.  15,  be  annulled. 

^    (anonymous.) 

If  a  farm  lies  partly  in  tvro  school  districts,  it  is  to  be  taxed  in  the  district  in 
which  the  occupant  resides. 

By  A.  C.  Flagg,  December  10,  1827.  By  looking  at  the 
25th  section  of  the  school  act  of  1819,  page  17,  you  will  see 
that  it  is  made  the  duty  of  trustees  to  assess  "  all  the  taxa- 
ble inhabitants  residing  in  such  district,  according  and  in  pro- 
portion to  the  valuations  of  the  taxable  property  which  shall  be 
owned  or  possessed  by  them  within  such  district,  or  which  being 
intersected  by  the  boundaries  of  such  district,  shall  be  so  owned 
or  possessed  by  them  partly  in  such  district  and  partly  in  any 
adjoining  district."t 

The  principle  is,  that  where  a  line  between  two  districts  runs 
through  a  man's  farm,  he  shall  be  taxed  for  the  whole  of  his 
farm  in  the  district  where  his  house  stands  or  where  he  resides. 
On  this  point  the  law  above  quoted  is  clear,  and  such  has  been 
the  construction  given  to  it. 

The  same  principle  governs  in  the  town  assessments,  as  you 
may  see  by  the  8th  section  of  the  act  of  1823,  which  provides 
that  "  where  the  line  between  two  towns  divides  any  occupied 
lot  or  form,  the  same  shall  be  taxed  in  the  town  where  the  oc- 
cupant lives,  provided  he  or  she  lives  on  the  lot."* 

(anonymous.) 

Conditional  certificates  of  qu&lification  cannot  be  given  to  teachers. 

By  A.  C.  Flagg,  December  16,  1827.  The  school  act  dofes 
not  recognize  conditional  certificates  to  be  given  to  teacherS. 

'■'     ■  '  •Sec.  21,  page  471,  vol.  1,  R.  S. 

tSec.  76,  page  482,  vol.  1,  R.  S.  t  Sec.  4,  page  S89,  voJ.  1,  R.  3. 


SUPERINTENDENT    OP    COMMON    SCHOOLS.  25 

While  a  feeling  very  properly  prevails  to  extend  the  benefits  of 
the  school  money  to  those  districts  the  least  able  to  support  a 
school,  it  is  important  that  inspectors  should  do  all  in  their  pow- 
er to  elevate  the  standard  of  instruction  in  the  common  sphools. 
Much  is  left  to  their  sound  discretion,  and  much  depends  on  a 
rigid  discharge  of  their  duties.  I  cannot  authorize  any  relaxa- 
tion of  the  mode  of  giving  certificates;  the  law  does  not  justify  it. 

The  Commissioners  of  Common  Schools  of  the  town 
of  Milton,  ex  parte. 

Children  in  poor-houses  are  not  to  be  included  in  the  annual  reports  of  school 

districts. 

This  was  an  application  for  the  direction  of  the  Superinten- 
dent with  respect  to  an  apportionment  of  school  moneys  to  dis- 
trict No.  3  in  the  town  of  Milton,  the  trustees  having  included 
in  their  annual  report  all  the  children  in  the  county  poor-house, 
which  was  situated  within  the  boundaries  of  the  district. 

By  A.  C.  Flagg,  April  26,  1828.  The  21  children  belong- 
ing to  the  poor-house  ought  not  to  be  numbered  for  the  purpose 
of  drawing  money  into  the  district  where  the  poor-heuse  happens 
to  be  located.  A  deduction  from  the  number  of  children  report- 
ed by  district  No.  3  must  be  made  accordingly.* 

The  Commissioners  of  Common  Schools  of  the  town 
of  Fabius,  ex  parte. 

The  proceeds  of  the  school  fund  of  the  town  of  Fabius  must  be  applied  by  the 

trustees  of  the  fund  as  the  inhabitants  may  direct. 
But  trustees  of  school  districts  must  apply  such  proceeds  to  the  payment  of 

qualified  teachers. 

*  This  was  an  application  for  the  direction  of  the  Superinten- 
dent with  regard  to  the  appropriation  and  expenditure  of  the  pro- 
ceeds of  the  local  school  fund  of  the  town  of  Fabius. 

By  A.  C.  Flagg,  July  12,  1828.  The  24th  section  of  the 
new  act,  p.  8,  expressly  provides  that  no  moneys  shall  be  paid 
to  a  district  unless  a  teacher  duly  qualified  has  been  employed 
for  three  months  at  least,  "  and  that  all  moneys  received  from 
the  commissioners  during  that  year  [as  appears  by  the  report] 
have  been  applied  to  the  payment  of  the  compensation  of  such 
teacher,"  see  also  form  for  the  commissioners'  report.  You  must 
certify  that  "  the  money  has  been  expended  in  paying  teachers 

*  By  the  6th  section  of  the  act  of  25th  April,  1831,  it  is  provided  that  it 
shall  "  not  be  lawful  for  the  trustees  of  any  school  district  to  include  in  their 
annual  returns  the  names  of  any  children  who  are  supported  at  a  county  poor- 
house." 


26  .  T:      fT    CASES    DECIDED   BY   THE 

duly  appointed  and  approved  in  all  respects  according  to  law." 
The  trustees  are  not  allowed  to  pay  the  public  money  to  a  teach- 
er unless  he  is  qualified  as  the  law  requires.  The  fourth  section 
of  the.  act  of  1813,  chap.  100,  p.  157,  session  laws,  provides  that 
the  proceeds  of  the  school  lot  in  Fabius  shall  be  applied  by  the 
trustees  of  the  fund  in  such  manner  as  the  town  meeting  shall 
under  the  law  direct.  If  this  money  is  paid  over  to  the  commis- 
sioners of  common  schools  they  must  apply  it  as  they  do  the  oth- 
er moneys  Avhich  come  into  their  hands  for  the  use  of  schools,  to 
the  payment  of  the  wages  of  qualified  teachers.  And  so  with 
the  trustees  of  the  district,  if  it  is  paid  to  them.  The  town  by  a 
vote  might  possibly  through  the  trustees  of  the  town  fund,  vary 
the  application.  But  if  a  vote  is  passed  to  pay  it  to  the  district 
trustees,  they  must  be  guided  in  its  application  by  the  provisions 
of  the  law  under  which  their  office  is  created,  and  in  which  their 
duties  are  prescribed.  But  it  is  not  probable  that  your  town  has 
or  will  pass  a  vote  to  apply  the  local  school  fund  to  the  payment 
of  the  wages  of  teachers  who  are  not  qualified  according  to  law. 

The  Trustees  of  school  district  No.  4  in  the  town  of 
Hounsfield,  ex  parte. 

Private  property  cannot  be  taken  for  a  site  for  a  school-house  without  the  con- 
sent of  the  owner. 

This  was  a  case  in  which  the  title  to  the  site  of  the  school- 
house  in  district  No.  4  in  the  town  of  Hounsfield,  proved  defec- 
tive, and  the  owner  of  the  land  threatened  to  re-enter. 

By  A.  C.  Flagg,  October  15,  1828.  It  appears  by  your  let- 
ter, that  the  district  has  no  title  to  the  fee  of  the  land,  nor  a 
lease  for  the  site  of  the  school-house.  You  are  therefore  in  the 
power  of  the  person  who  owns  the  premises  on  which  the  school- 
house  stands.  '  The  district  has  no  power  over  individual  pro- 
perty in  obtaining  a  site  for  a  school-house ;  if  they  fix  a  site 
and  the  title  fails,  they  must  seek  a  site  where  the  land  can  be 
procured.  You  are  in  the  situation  of  a  district  without  any  site 
for  a  school-house,  unless  you  can  procure  the  fee  or  a  lease  of 
the  land  on  which  your  house  stands.  Your  best  course  is  to 
compromise  this  question  with  the  owner  of  the  farm,  who  if  he 
is  a  reasonable  man  will  do  what  is  just  in  the  premises.  If  the 
trustees  can  procure  the  land,  or  hire  it,  then  the  site  is  well 
enough.  If  they  cannot,  the  district  can  vote  a  site  elsewhere. 
Th«  prohibition  against  changing  the  site  of  a  school-house  doet 
not  apply  to  a  case  of  this  nature. 


:r;,..„,.,^ 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  27 

The  Trustees  of  school  district  No.  5  in  the  town  of 
Pompey,  ex  parte. 

A  non-resident  owner  is  taxable  for  land  occupied  by  an  agent:  but  not  if  occu- 
pied by  a  tenant:  and  if  it  is  unoccupied,  he  is  taxable  for  so  much  only  as  is 
cleared  and  cultivated. 

This  was  a  case  in  which  a  person  hving  out  of  the  bounda- 
ries of  district  No.  5  in  the  town  of  Pompey,  owned  a  lot  of  land 
within  that  district,  the  lot  being  occupied,  but  not  by  him. 

By  A.  C  Flagg,  November  19,  1828.  If  the  non-resident 
owner  of  the  250  acres  of  land  in  your  district  has  an  agent 
living  on  the  premises,  then  the  owner  of  the  land  can  be  taxed 
for  it  under  sec.  77,  as  occupying  it  by  his  agent.  If  the  person 
living  on  the  premises  rents  the  land  as  tenant,  then  he,  the 
tenant,  is  liable  to  be  taxed  for  the  premises,  that  is  for  the  whole 
lot.  When  a  lot  is  not  occupied  by  an  agent  or  servant,  then  the 
owner,  if  a  non-resident,  is  to  be  taxed  for  such  parts  only  as  are 
"  actually  cleared  and  cultivated,"  under  sec.  78.* 

The  Trustees  of  school  district  No.  1  in  the  town  of 
Jamestown,  ex  parte. 

Trustees  of  school  districts  may  renew  a  warrant  to  collect  a  tax,  whether  issued 

by  themselves  or  their  predecessors. 
If  a  district  meeting  votes  to  renew  a  warrant  and  collect  a  tax,  the  trustees  may 

regard  it  as  an  original  vote  to  raise  the  amount  specified,  and  issue  a  new 

warrant  for  its  collection. 
Taxes  can  only  be  voted  by  the  inhabitants  of  school  districts  for  the  objects 

enumerated  by  law. 

On  the  19th  May,  1827,  the  inhabitants  of  school  district  No. 
1  in  the  town  of  Jamestown,  voted  a  tax  of  ten  dollars  "  to  de- 
fray contingent  and  other  expenses,  at  the  discretion  of  the  trus- 
tees." The  tax-list  was  made  out  with  a  warrant  annexed,  and 
delivered  by  the  trustees  to  the  collector  for  collection ;  but  through 
the  neglect  of  the  latter,  no  part  of  the  amount  was  collected. 
On  the  15th  November,  1828,  the  inhabitants  of  the  district  vo- 
ted that  the  warrant  for  collecting  a  tax  of  ten  dollars  "  for  de- 
fraying necessary  expenses  at  the  discretion  of  the  trustees,"  as 
voted  at  a  district  meeting  on  the  19th  of  May,  1827,  be  renew- 
ed, and  put  into  the  hands  of  the  collector  to  be  collected  forth- 
with.    The  trustees  of  the  district,  doubting  whether  the  old 

•  The  principle  of  this  decision  is  fully  sustained  by  the  construction  of  the 
law  by  the  Supreme  Court  in  the  case  of  Dubois  vs.  Thome  and  others,  7  Wen- 
dell, 518,  in  which  a  lessee  of  a  non-resident  owner  was  held  liable  for  a  tax  for 
part  of  a  lot,  and  two  sub-tenants  for  the  parts  occupied  by  them.  The  court 
said  that  "  the  mere  ownership  of  the  property,  without  occupation  by  himself, 
his  agent  or  servant,"  was  not  sufficient  to  charge  the  non-resident  owner  with 
the  tax. 


28  -♦riw  -.     CASES    DECIDED    BY   THE 

warrant  should  be  renewed,  or  whether  a  new  tax-list  should  be 
made  out,  apphed  to  the  Superintendent  for  his  direction. 

By  A.  0.  Flagg,  November  23,  1828.  Trustees  of  school 
districts  for  the  time  being  may  renew  a  warrant  for  the  collec- 
tion of  a  tax,  whether  issued  by  themselves  or  their  predecessors, 
and  without  a  vote  of  the  district  meeting ;  but  a  renewal  must 
be  for  the  same  sum,  and  against  the  same  individuals.  The 
vote  of  Nov.  15th  would  authorize  the  trustees  to  levy  the  same 
as  a  new  tax  on  the  present  inhabitants  of  the  district.  It  is  a 
new  tax  and  must  be  made  out  against  the  present  taxable  in- 
habitants of  the  district  in  the  same  manner  as  any  other  tax. 
These  opinions  are  based  upon  the  presumption  that  the  district 
meeting  had  a  right  to  vote  this  tax.  The  powers  of  district 
meetings  are  defined  in  section  61  of  the  Revised  Statutes,  rela- 
ting to  common  schools.  The .  meeting  should  vote  a  specified 
sum  for  a  specified  object,  and  for  such  objects  only  as  are  em- 
braced and  authorized  by  subdivision  5  of  the  above  section.  A 
vote  for  a  sum  to  "  defray  necessary  expenses  at  the  discretion  of 
the  trustees,"  is  altogether  too  loose  and  vague  a  proceeding  in 
matters  relating  to  the  assessment  of  taxes,  particularly  where 
the  statute  has  defined  the  objects  for  which  a  district  meeting 
may  vote  taxes.* 

The  Trustees  of  school  district  No.  2  in  the  town  of 
Brighton,  ex  parte. 

A  bell  is  not  a  necessary  appendage  to  a  school-hoiwe,  and  cannot  be  provided 

•by  a  tax. 

The  inhabitants  of  school  district  No.  2  in  the  town  of  Brigh- 
ton procured,  with  the  consent  and  approbation  of  the  trustees, 
a  bell  for  the  district  school-house.  It  was  originally  designed  to 
raise  by  subscription  the  amount  required  to  cover  the  expense : 
but  at  the  ensuing  annual  meeting  it  was  unanimously  resolved 
that  a  sum  sufficient  to  pay  for  the  bell  and  make  some  neces- 
sary repairs  on  the  school-house  should  be  raised  on  the  taxable 
property  of  the  district.  The  cost  of  the  bell  was  ^1 .50,  and 
an  additional  sum  of  $8 .  50  was  voted  for  repairs,  amounting 
in  the  aggregate  to  $30.     In  consequence  of  the  refusal  of  some 

•  The  Supreme  Court,  in  the  case  of  Robinson  vs.  Dodge  and  others,  deci- 
ded that  the  inhabitants  of  a  school  district  had  no  right  to  delegate  to  the  trus- 
tees any  discretionary  power  as  to  the  aggregate  amount  of  the  tax  to  be  collect- 
ed. The  court  said,  they  (the  trustees)  "  are  required  to  make  a  rate-bill  or 
tax-bill  to  raise  the  sum  voted  for,  which  implies  a  vote  for  a  definite  sum." 

The  act  of  1814,  under  which  the  decision  of  the  court  was  pronounced,  dif- 
fers somewhat  from  the  Revised  Statutes  in  the  language  of  the  provision  relat- 
ing to  the  impositioQ  and  collection  of  taxes  for  school  £strict  purposes,  but  not 
so  much  so  as  to  require  a  different  rule  of  construction. 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  29 

of  the  inhabitants  who  were  not  present  at  the  annual  meeting, 
to  pay  their  proportion  of  the  tax,  the  trustees  of  the  district  ap- 
phed  to  the  Superintendent  for  his  direction. 

By  A.  C.  Flagg,  November  25,  1828.  The  statute  relating 
to  common  schools  authorizes  the  district  meeting  to  vote  a  tax  , 
to  build  a  school-house  and  to  furnish  the  same  with  "  necessa- 
ry fuel  and  appendages,"  and  the  question  is  whether  a  bell  is  a 
necessary  appendage  to  a  common  school-house.  It  is  not  usual 
to  furnish  district  school-houses  with  bells ;  it  may  be  conve- 
nient in  your  particular  case  to  have  one ;  but  I  cannot  believe 
that  a  bell  was  contemplated  by  the  legislature  as  among  the 
objects  authorized  to  be  furnished  for  a  school-house.  It  is  there- 
fore my  opinion  that  it  is  not  a  necessary  appendage  within  the 
meaning  of  the  statute,  and  that  a  tax  cannot  be  voted  to  pro- 
vide one. 

The  Commissioners  of  Common  Schools  of  the  town 
of  Redhook,  ex  parte. 

A  pereon  who  is  assessed  to  work  on  the  highway  is  entitled  to  vote  at  school 
district  meetings. 

This  was  an  application  from  the  commissioners  of  common 
schools  of  the  town  of  Redhook,  for  the  opinion  of  the  Super- 
intendent with  regard  to  the  right  of  a  person  who  works  on  the 
highway,  or  pays  a  commutation  therefor,  to  vote  at  school  dis- 
trict meetings. 

By  A.  C  Flagg,  Novetnher  28, 1828.  Assessments  to  work 
on  the  highway  entitle  a  person  to  vote  in  a  school  district.  The 
phraseology  of  the  old  election  law  was  similar  to  this  ;  and  in- 
stances must  have  fallen  under  your  notice  where  persons  would 
pay  a  highway  tax  to  entitle  themselves  to  a  vote.  The  old 
constitution  required  that  persons  voting  on  a  tenement,  should 
have  "actually  paid  taxes  to  the  state,"  and  in  the  act  for  regu- 
lating elections  passed  March  29,  1813,  sec.  10,  p.  253,  2  vol. 
rev.  laws  of  1813,  it  is  declared  that  every  person  having  paid 
taxes  on  the  highway,  &c.,  "shall  be  considered  as  having  paid 
taxes  to  the  state"  for  the  purposes  of  that  act. 

The  Commissioners  of  Common  Schools  of  the  town 
of  Locke,  ex  parte. 

The  provision  requiring  three  months  notice  to  trustees  of  an  alteration  in  their 
school  district  is  intended  for  their  protection,  and  to  that  end  is  to  be  benign- 
ly construed. 

In  September,  1827,  Messrs.  Reuben  Stearns  and  Nathaniel  ^ 
W.  Ingraham  were  set  off  from  district  No.  10  in  the  town  of 


30  •»►»...     CASES    DECIDED    BY    THE 

Locke,  and  attached  to  district  No.  9  in  the  same  town.  In  No- 
vember ensuing,  Ingraham  was  elected  a  trustee  of  the  latter 
district,  and  officiated  in  that  capacity  until  November,  1828. 
There  was  no  evidence  on  record  of  the  alteration  above  men- 
tioned having  been  made  with  the  consent  of  the  trustees  of  dis- 
trict No  10,  or  that  any  notice  had  been  served  on  them  by  the 
commissioner's;  but  they  were  notified  of  the  intention  of  the 
commissioners  to  set  off  the  two  individuals  referred  to,  and  of 
the  time  and  place  of  meeting  for  the  purpose.  In  November, 
1828,  a  tax  wcis  voted  in  district  No.  9  to  build  a  school- house, 
when  a  doubt  was  raised  by  one  of  them,  whether  they  had 
been  legally  set  off  from  No.  10.  The  facts  were  submitted  to 
the  Superintendent  for  his  opinion. 

By  A.  C.  Flagg,  December  26,  1828.  Messrs.  Stearns  and 
Ingraham  petitioned  the  commissioners  of  common  schools  to  be 
detached  from  district  No.  10  to  No.  9,  and  in  September,  1827, 
their  petition  was  granted  ;  and  Ingraham  was  elected  a  trustee 
of  No.  9,  in  which  capacity  he  served  until  November,  1828. 
The  alteration  of  district  No.  10  by  attaching  them  to  No.  9,  ap- 
pears to  have  been  recorded  in  the  usual  manner  under  the  old 
law.  AVhether  the  trustees  of  No.  10  were  originally  willing  to 
gratify  Messrs,  Stearns  and  Ingraham  in  their  request  to  be  an- 
nexed to  No.  9  or  not,  and  whether  notice  was  served  or  not,  can- 
not after  so  long  a  time  affect  the  relations  of  Messrs.  S.  and  I. 
with  the  trustees  and  inhabitants  of  No.  9.  The  provision  re- 
quiring the  consent  of  trustees  to  detach  persons  from  their  dis- 
trict, and  holding  them  three  months  without  such  consent,  was 
made  for  the  benefit  and  protection  of  the  trustees,  to  whose  in- 
jury the  alteration  might  operate.  For  instance,  trustees  might 
have  made  contracts  and  incurred  responsibilities,  which  would 
operate  oppressively,  if  some  of  the  most  wealthy  were  detached 
before  they  had  time  to  collect  the  tax.  In  such  cases  the  trus- 
tees are  effectually  protected  by  their  veto  upon  the  formation  ef 
the  district  for  three  months,  in  which  time  they  can  collect  their 
tax.  And  to  carry  this  intention  into  effect,  the  act  should  be 
benignly  and  favorably  construed  for  the  protection  of  the  trus- 
tees. But  in  relation  to  Messrs.  Stearns  and  Ingraham,  none  of 
these  reasons  can  avail  them ;  they  desired  to  be  set  to  No.  9, 
and  were  gratified.  The  trustees  of  No.  10,  from  their  silence 
in  the  matter,  seem  to  have  acquiesced ;  and  as  the  trustees  have 
not  sought  to  retain  Messrs.  S.  and  I.,  and  more  than  a  year 
has  elapsed,  they  must  be  considered  as  having  been  legally  at- 
tached to  No.  9. 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  31 

The  Trustees  of  school  district  No. in  the  town 

of  Walkill,  ex  parte. 

Trustees  of  school  districts  cannot  transfer  to  a  teacher  the  power  of  enforcing 

tlie  collection  of  his  wages. 
Teachers  are  not  allowed  fees  on  sums  voluntarily  paid  to  them  for  tuition. 

The  trustees  of  school  district  No.  — — ,  made  a  contract  with 
a  teacher,  by  which  he  agreed  to  collect  his  own  wages,  with  the 
understanding  that  he  was  to  receive  the  usual  fees  for  collec- 
tion. The  question  submitted  was  whether,  in  either  of  these 
respects,  the  contract  was  valid. 

By  A.  O.  Flagg,  December  30,  1S28.  The  trustees  are  to 
contract  with  and  pay  the  teachers ;  and  those  who  send  to  the 
school  are  bound  to  pay  the  trustees  the  sums  for  which  they  are 
respectively  hable.  But  the  authority  to  coerce  payment  is  not 
given  to  the  teacher :  persons  indebted  may  pay  to  him  the  sums 
due  from  them,  and  his  receipt  for  such  payment  is  valid  on  the 
contract  which  the  trustees  have  made  with  him.  Such  collec- 
tio5Bfe  are  allowed  by  the  law.  But  the  district,  has  a  collector, 
and  if  the  sums  due  the  teacher  are  not  voluntarily  paid  to  him, 
then  it  is  the  duty  of  the  trustees,  according  to  subdivision  12. 
13  and  14,  sec.  75,  to  ascertain  the  amount  due  from  each 
person,  by  an  examination  of  the  school  lists,  to  make  out  a 
rate-bill,  adding  5  per  cent,  for  collector's  fees,  and  to  give  the 
bill  and  warrant  to  the  collector.  This  is  the  only  allowance  of 
fees  which  can  be  made  for  collecting.  In  reference  to  collec- 
tions by  the  teacher,  I  find  the  terms  of  the  old  law  were,  that 
"the  wages  of  teachers  sliall  be  collected  by  the  trustees,  unless 
such  teachers  shall  agree  to  collect  the  same,"  &c.  The  terms 
of  the  law  now  are,  "  It  shall  be  the  duty  of  trustees,  and  they 
shall  have  power"  "to  collect  the  residue  of  such  wages,  ex- 
cepting such  suras  as  may  have  been  collected  by  the  teachers," 
<fcc.  The  old  law  authorized  an  agreement  with  tiie  teacher  to 
collect  his  own  wages;  the  new  law  tolerates  such  collections, 
but  does  not  authorize  the  trustees  to  transfer  to  the  teacher  the 
power  of  coercing  payment.  It  is  therefore  my  opinion  that  the 
trustees  must  collect  the  wages,  and  that  they  have  no  right  to 
make  an  allowance  to  the  teacher  for  collecting. 

(anonymous.) 

]\on-residentsare  liable  to  be  taxed  for  pastures  and  meadows,  as  land  cleared 
and  cultivated. 

By  A.  C.  Flagg,  January  3,  1829.  The  question  has  been 
submitted  whether  salt  meadows,  from  which  the  owners  secured 
the  grass,  but  which  were  not  otherwise  improved,  could  be  as- 
sessed in  a  school  district  under  the  78th  section  of  the  revised 


32  CASES    DECIDED   BY    THE 

school  act,  the  owners  being  non-residente  of  that  district.  Un- 
der the  old  act,  cultivated  land  having  no  person  actually  occu- 
pying and  residing  upon  it,  could  not  be  assessed  to  a  non-resi- 
dent owner.  The  78th  section,  therefore,  is  a  new  provision, 
evidently  intended  by  the  legislature  to  make  all  productive  real 
estate  contribute  in  taxes  for  the  erection  of  school-houses,  (fee, 
in  the  district  where  it  is  situated.  The  person  who  owns  a  lot 
in  an  adjoining  district  on  which  there  is  no  tenement,  and 
which  he  improves  as  pasture  land  or  as  meadow  land,  is  clear- 
ly hable  to  be  taxed  for  it  now ;  under  the  old  law  it  was  ex- 
empt. The  owners  of  the  salt  meadow  improve  their  land  'in 
the  same  maijner.  and  for  similar  purposes.  Under  the  old  law 
it  could  not  be  taxed  ]  but  it  is  liable  to  taxation  under  the  Re- 
vised Statutes. 

Thomas  Cooper  and  others,   inhabitants  of  school 
district  No.  25  in  the  town  of  Chazy,  ex  parte. 

Persons  annexed  to  a  school  district,  after  the  school-house  has  been  built  and/paid 
for,  cannot  be  compelled  to  contribute  to  the  expense  of  its  construction. 

In  the  year  1825,  school  district  No.  25  in  the  town  of  Chazy 
was  formed  and  organized  according  to  law.  During  the  ensu- 
ing year,  a  school-house  Avas  built  and  paid  for  by  a  tax  on  the 
inhabitants  of  the  district.  In  the  year  1828,  several  persons 
were  set  off  from  school  district  No.  2  in  said  town,  to  district 
No.  25,  by  the  commissioners  of  common  schools,  without  the 
consent  of  the  trustees  of  the  latter.  This  was  an  application 
to  the  Superintendent  of  Common  Schools  for  an  order  to  com- 
pel the  persons  thus  annexed  to  district  No.  25  to  pay  their  pro- 
portion of  the  expense  of  building  the  school-house,  or  to  set 
them  back  to  district  No.  2. 

By  A.  C.  Flagg,  January  12,  1829.  District  No.  25  in 
Chazy  was  organized,  and  after  having  built  a  school-house  was 
enlarged  by  adding  several  persons  to  it  without  the  consent  of 
the  trustees.  The  question  is,  whether  the  persons  thus  set  to 
No.  25  can  be  assessed  for  any  portion  of  the  school-house  wltich 
had  been  erected  and  fully  paid  for  before  they  became  members 
of  the  district.  There  is  no  law  for  taxing  them  under  such 
circumstances. 

They  can  be  set  back  to  the  district  from  which  they  were 
taken,  if,  after  a  hearing  of  both  parties,  it  is  deemed  proper. 
If  the  persons  aggrieved  wish  a  decision  on  this  point,  they  must 
give  notice  as  required  by  the  regulations  in  relation  to  appeals. 


I 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  33 

The  Inspectors  of  Common  Schools  of  the  town  of 
Ballston,  ex  parte. 

Teachers  in  joint  school  districts  may  be  examiDed  by  the  inspectors  of  either 

town. 

This  was  an  application  from  the  inspectors  of  common 
schools  of  the  town  of  Ballston  for  the  opinion  of  the  Superin- 
tendent on  the  following  case :  A  teacher  was  employed  in  a 
school  district  lying  partly  in  Ballston  and  partly  in  an  adjoining 
town,  and  after  being  examined  by  the  inspectors  of  the  former, 
was  found  deficient  and  was  refused  a  certificate  of  qualification. 
A  few  days  afterwards  he  applied  to  the  insf>ectors  of  the  adjoin- 
ing town,  who  examined  him  and  gave  him  a  certificate. 

By  A.  C.  Flagg,  January  28,  1829.  The  inspectors  of 
either  town  may  give  a  certificate  to  the  teacher  of  a  double  dis- 
trict, (sec.  51.)  The  certificate,  therefore,  is  good.  If  the  teacher 
is  decidedly  incompetent,  his  certificate  may  be  annulled  by  the 
inspectors  of  either  town  interested  in  the  school.  But  this  might 
lead  to  an  unpleasant  controversy,  and  ought  not  to  be  resorted 
to  unless  the  district  is  to  suffer  by  the  incompetency  of  the 
teacher. 

The  Trustees  of  school  district  No. in  the  town 

of  Hammond,  ex  parte. 

Children  are  to  be  numbered  in  the  districts  m  which  their  parents  reside. 

If  children  are  boarded  in  a  district  to  attend  school,  they  must  be  numbered 
where  their  parents  reside. 
"  *  . 

**  This  was  an  application  from  the  trustees  of  school  district 

No. in  the  town  of  Hammond  for  the  opinion  of  the  Super- 
intendent in  the  following  case :  In  one  of  the  school  districts  of 
the  town  no  winter  school  was  kept,  and  several  of  the  inhabi- 
tants boarded  their  children  in  district  No. for  the  purpose 

of  sending  them  to  school,  which  they  attended  in  the  latter  dis- 
trict from  the  1st  of  November,  1828,  until  February,  1829. 
The  question   submitted  to  the  Superintendent  was,   whether 

those  children  should  have  been  enumerated  in  district  No. , 

on  the  last  day  of  December,  1828,  or  whether  they  should 
have  been  enumerated  in  the  district  in  which  their  parents  re- 
sided on  that  day. 

By  A.  C  Flagg,   February  6,  1829.     Children  must  be 

numbered  in  the  district  where  their  parents  reside ;  and  if  the 

children  board  and  attend  school  in  another  district,  this  does 

not  change  their  residence ;  but  they  must  st^l.  be  numbered 

j^where  their  parents  leside. 

3 


34  CASES    DECIDED    BY    THE 

% 

The  Trustees  of  school  district  No.  4  in  the  town  of 

Somerset,  ex  parte. 

If,  for  causes  not  to  be  controlled,  a  school  has  not  been  kept  three  months 
during  the  preceding  year  by  a  qualified  teacher,  the  district  will  be  allowed  a 
share  of  the  public  money. 

Scliool  district  No.  4  in  the  town  of  Somerset  was  formed  in 
the  early  part  of  the  year  1828.  It  was  organized,  a  school- 
house  was  erected,  and  a  teacher  duly  inspected  was  engaged 
for  five  months,  and  a  school  Avas  commenced  on  the  first  day 
of  August.  Soon  afterwards  the  district  became  so  unhealthy 
that  there  were  scarcely  persons  enough  within  it  to  take  care  of 
the  sick,  and  the  school  was  broken  up  about  the  20th  of  Sep- 
tember, and  the  teacher  discharged.  This  state  of  things  con- 
tinued until  the  first  of  November,  when  it  was  found  impossible 
to  procure  a  qualified  teacher  to  commence  a  school  before  the 
first  of  January.  The  provision  of  the  statute  which  requires 
school  districts  to  have  a  school  taught  three  months  during  the 
preceding  year  by  a  qualified  teacher,  in  order  to  entitle  them  to 
a  share  of  the  public  moneys,  was  not  complied  with.  This  was 
an  application  to  the  Superintendent  from  the  trustees  of  the  dis- 
trict, through  the  commissioners  of  common  schools  of  the  town, 
to  authorize  the  district,  under  the  peculiar  circumstances  of 
the  case,  to  receive  a  share  of  the  public  moneys. 

By  A.  C.  Flagg,  February  7,  1829.  It  appears  by  your 
statement  that  the  trustees  of  district  No.  4  employed  a  qualified 
teacher  for  five  months;  but  from  the  extraordinary  sickness 
which  prevailed,  the  school  was  broken  up  before  three  months 
were  completed.  As  the  trustees  acted  in  good  faith  and  took 
the  steps  necessary  to  comply  with  the  law,  and  as  the  failure 
was  from  causes  beyond  their  control,  and  involving  no  neglect 
on  the  part  of  the  trustees  or  the  district,  it  is  proper,  in  my 
opinion,  for  these  special  reasons,  to  pay  to  district  No.  4  its  share 
of  (Jie  school  moneys. 

The  inhabitants  of  school  district  No. in  the 

town  of  Villenova,  ex  parte. 

All  children  residing  in  a  district  are  to  have  the  benefit  of  the  public  money,  it 
they  attend  school,  without  reference  to  their  ages. 

This  was  an  application  from  the  inhabitants  of  school  dis- 
trict No. in  the  town  of  Villenova,  for  the  opinion  of  the 

Superintendent  as  to  the  application  of  tlie  public  money  for  the 
benefit  of  children  attending  school  who  were  under  the  age  of 
5  years. 

By  A.  C.  Flagg,  February  16,  1829.     The  public  money 


^^  t 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  35 

being  paid  to  the  teacher  is  shared  equally  by  all  who  attend 
school,  without  reference  to  their  ages.  All  residents  of  a  dis- 
trict are  entitled  to  a  privilege  in  the  school  whether  they  are 
over  16  or  under  5.  But  scholars  belonging  to  other  districts,  or 
whose  residence  is  not  in  your  district,  have  no  right  to  a  share 
of  the  school  moneys- 

The  Trustees  of  school  district  No,  17  in  the  town  of 
Hector,  ex  parte. 

A  person  set  off  from  one  school  district  to  another  is  not  entitled  to  any  part  of 
the  value  of  the  school-house  or  property  of  the  district  from  which  he  is  de- 
tached. 

The  value  of  the  schooi-house  and  other  property  is  only  to  be  apportioned  when 
a  new  district  is  formed. 

This  was  an  application  from  the  trustees  of  school  district 
No.  17  in  the  town  of  Hector  to  the  Superintendent  to  ascertain 
whether  an  individual  who  was  set  off  from  that  district  to  an 
adjoining  one  by  the  commissioners  of  common  schools,  was 
entitled  to  receive  from  the  former  his  proportion  of  the  value  of 
the  school-house  and  other  property  belonging  to  it. 

By  A.  C.  Flagg,  February  16,  1829.  A  peison  setoff  from 
a  school  district  is  not  entitled  to  any  remuneration  for  his  interest 
in  the  school-house  or  other  property  belonging  to  the  district 
from  which  he  is  detached.  The  apportionment  of  tiie  value  of 
the  school-house,  &c.,  by  sec.  67,  is  to  be  made  only  "  when  a 
new  district  shall  be  formed  from  one  or  more  districts,"  <fcc.  But 
setting  one  or  more  persons  from  one  old  district  to  another,  does 
not  give  a  claim  to  those  detached  to  remuneration  for  the  value 
of  the  school-house  and  other  property. 

John  Reedy  and  others  against  the  Commissioners 
of  Common  Schools  of  the  town  of  Germantown. 

The  Superintendent  will  not  interfere  with  the  general  arrangement  of  school 
districts  in  a  town,  excepting  in  special  cases  where  cause  is  shown. 

This  was  an  appeal  from  several  inhabitants  of  the  town  of 
Germantown  from  the  proceedings  of  the  commissioners  of  com- 
mon schools  in  arranging  the  school  districts-  The  apphcation 
for  the  interposition  of  the  Superintendent  was  not  grounded 
upon  the  injustice  or  inconvenience  of  any  particular  case,  but 
proceeded  upon  the  allegation  that  the  general  plan  was  injudi- 
cious. 

By  A.  C.  Flagg,  March  2,  1829.  By  the  20th  section  of 
the  revised  school  act,  it  is  made  the  duty  of  the  commissioners 
of  common  schools  "to  divide  their  town  into  a  convenient  num- 


36  ..  CASES    DECIDED    BY    THE 

I)er  of  school  districts,  and  to  regulate  and  alter  «flch  districts.'^ 
They  are  chosen  by  the  town  for  this  express  purpose :  they  are 
acquainted  with  the  local  situation  of  the  territory,  and  having  a 
view  of  the  whole  ground,  their  official  acts  are  entitled  to  much 
respect,  unless  they  are  shown  to  have  been  produced  by  inte- 
rest, prejudice,  or  some  other  improper  inlluence. 

It  is  presumed  that  the  commissioners  exercised  their  best 
judgments  and  Eicted  from  honest  motives.  If,  however,  their 
acts  operate  to  the  inconvenience  or  prejudice  of  individuals,  the 
griev^ances  of  such  individuals  are  entitled  to  redress,  so  far  as  is 
consistent  with  the  rights  of  others  and  the  general  good.  By 
the  11th  sec.  of  the  revised  school  act,  any  person  "conceiving 
himself  aggrieved,"  &c.,  hag  a  right  to  appeal.  Now  a  person 
might  very  honestly  differ  in  opinion  wMth  the  commissioners  as 
to  the  general  organization  of  the  town  into  districts :  he  might 
believe  that  a  different  plan  would  hav^e  been  better,  and  might 
therefore  appeal,  "conceiving  himself  aggrieved ;"  but  in  such 
case  the  character  of  the  grievance  being  a  mere  difference  of 
opinion,  would  not  be  such  as  to  induce  the  Superintendent  to 
break  up  the  entire  oi^anization  of  a  town,  which  had  been 
made  by  the  proper  authorities,  after  full  examination  and  due 
deliberation.  So  far  as  relates  to  the  general  organization  of  a 
town,  much  reliance  must  be  placed,^  from  the  nature  of  the 
case,  upon  the  decision  of  the  commissioners. 

The  appeal  is  dismissed. 

The  Commissioners  of  Common  Schools  of  the  town 
of  Ballston,  ex  parte. 

Errors  of  form  in  the  annu^J  report3  of  school  districts  may  be  conected. 

This  was  an  application  from  the  commissioners  of  common 
schools  of  the  town  of  Ballston  for  the  direction  of  the  Superin- 
tendent with  regard  to  a  case  in  which  the  trustees  of  a  school 
district  had  failed  to  make  their  annual  report  in  compliance 
with  the  form  prescribed,  though  the  substantial  matters  required 
by  law  were  fully  shown. 

By  A.  C.  Flagg,  March  11,  1829.  In  all  cases  where  the 
dbtricts  have  complied  substantially  with  the  law,  the  trustees 
may  be  allowed  to  correct  their  reports  as  to  mere  matters  of 
form  at  any  time  befwe  the  money  is  actually  apportioned  and 
paid.  A  district  ought  not  to  lose  its  money  in  consequence  of 
a  misconception  of  the  law,  or  a  mere  clerical  error  on  the  part 
of  some  of  its  officers.  The  commissioners  ought  to  consider 
themselves  the  guardians  of  the  equitable  rights  of  the  districts, 
and  when  they  discover  an  error  as  ^o  form,  which  if  not  cor- 
rected would  deprive  the  district  of  its  just  share  of  the  public 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  37 

money,  they  should  point  it  out  to  the  trustees,  to  the  end  that 
it  may  be  corrected  and  the  fair  rights  of  the  district  secured. 

The  inhabitants  of  school  district  No.  7  in  the  town 
of  Champion  against  the  Commissioners  of  Com- 
mon Schools  of  said  town. 

When  a  new  district  is  formed,  the  school-house  and  other  property  of  the  dis- 
trict, from  which  it  is  talcen,  must  be  appraised  and  apportioned  at  the  same 
time. 

This  was  an  appeal  from  the  proceedings  of  the  commission- 
ers of  common  schools  of  the  town  of  Champion  in  relation  to 
school  district  No.  7  in  said  town.  This  district  was  divided, 
and  a  new  district  formed,  without  appraising  and  apportioning 
the  value  of  the  school-house  and  other  property  belonging  to 
the  former.  Three  months  subsequent  to  the  formation  of  the 
new  district,  the  commissioners,  on  the  application  of  some  of 
the  persons  annexed  to  it,  re-assembled  and  appraised  the  school- 
house  and  other  property  belonging  to  district  No.  7,  and  appor- 
tioned to  the  inhabitants  set  off  to  the  new  district,  their  propor- 
tion of  the  value  of  said  house  and  property.  From  this  pro- 
ceeding an  appeal  was  brought. 

By  A.  C.  Flagg,  March  13,  1829.  The  language  of  the 
statute  is,  that  the  commissioners  in  forming  a  new  district, 
'•  shall  ascertain  the  amount  due  to  such  district,  at  the  time  of 
forming  such  new  district."  The  intention  of  the  law  is  to  have 
the  valuation  of  the  house,  &c.,  made  at  the  time  of  dividing  the 
district.  There  are  some  reasons  besides  the  plain  terms  of  the 
statute,  in  favor  of  having  the  valuations  made  at  that  time 
rather  than  at  any  other.  It  is  just  and  fair  that  the  old  district 
should  know  at  the  time  of  the  division  whether  a  tax  is  to  be 
levied  to  pay  for  a  portion  of  the  school-house ;  because  in  many 
instances  the  inhabitants  would  remonstrate  against  a  division 
of  the  district  if  they  knew  that  a  tax  would  be  required  to  pay 
those  set  off  for  a  part  of  the  school-house,  when,  without  such 
knowledge,  they  might  silently  acquiesce  in  the  division.  It 
is  also  due  to  those  retaining  the  school-house,  that  they  should 
know  whether  they  are  to  be  taxed,  as  it  might  form  the  princi- 
pal reason  for  an  appeal  against  the  division  of  the  district ;  and 
if  the  principle  were  established  that  the  valuation  might  take 
place  at  any  time,  designing  persons  might  get  the  commission- 
ers to  divide  a  district,  and  postpone  levying  the  assessment 
until  after  the  thirty  days  allowed  for  appealing  from  the  divi- 
sion, and  thus  take  the  inhabitants  by  surprise,  and  deprive 
them  of  their  fair  redress  in  the  ordinary  way.  An  additional 
reason  against  deferring  the  valuation  of  the  school-house  is, 


4 


38  CASES    DECIDED   BY    THE 

that  another  portion  of  the  inhabitants  of  the  district  retaining 
the  house,  might  be  detached  to  other  adjoining  districts,  and  leave 
the  proportion  of  tax  still  heavier  upon  those  who  remained.  It 
is  my  opinion,  therefore,  that  in  forming  a  new  district  from  two 
or  more  districts,  the  valuation  of  the  school-hotrse  must  be  made 
by  the  commissioners  at  the  time  of  forming  the  district,  if  there 
is  a  schod-house  to  which  the  district  has  an  undisputed  title ; 
and  if  the  commissioners  omit  to  make  the  necessary  valuation, 
they  cannot  make  the  appraisement  at  a  subsequent  time  with- 
out an  order  from  the  Superintendent  of  Common  Schools,  who 
will  open  the  whole  case  by  allowing  an  appeal  from  the  pro- 
ceedings of  the  commissioi^rs,  both  in  making  such  appraise- 
ment, and  in  forming  the  new  district 
Decision  accordingly. 

The  Trustees  of  school  district  No.  3  in  the  town  of 
Wilmington  against  the  Inspectors  of  Common 
Schools  of  said  town. 

If  an  injector  of  commtm  schools  is  employed  as  a  teacher,  he  mnst  be  exa- 
mined like  all  other  teachers. 
An  intemperate  man  ought  not  to  be  employed  aa  a  teacher  of  common  schools. 

The  trustees  of  school  district  No.  3  in  the  town  of  Wilming- 
ton employed  as  a  teacher  an  individual  who  had  been  six  years 
engaged  in  giving  instruction,  who  had  received  at  different 
times  certificates  of  qualification,  and  who  was,  at  the  time  he 
was  so  employed,  an  inspector  of  common  scIkmJs  of  the  town. 
At  a  meeting  of  the  commissioners  and  the  two  other  inspectors, 
called  for  the  purpose  of  examining  him,  they  refused  to  grant 
him  a  certificate  upon  the  ground  that  he  was  intemperate. 
From  this  decision  the  trustees  of  district  No.  3  appealed. 

By  A.  C.  Flagg,  March  23,  1829.  By  section  46  of  the 
statute,  it  is  made  the  duty  of  the  inspectors  to  ascertain  the 
qualifications  of  the  teacher  "  in  respect  to  moral  character"  as 
well  as  learning  and  ability.  The  fact  that  the  teacher  is  an  in- 
spector himself,  and  that  he  has  had  certificates  before,  does  not 
vary  his  case ;  he,  as  well  as  all  other  teachers,  must  be  tested 
by  his  qualifications  and  his  moral  character.  He  may  have 
become  intemperate  since  he  was  examined,  or  former  inspec- 
tors may  not  have  known  the  fact.  The  only  question  on 
this  point  should  be.  is  he  now  addicted  to  intemperance  ?  If 
so,  he  is  not  a  proper  person  to  be  continued  as  a  teacher  of 
your  children.  And  in  my  opinion,  the  inspectors  cannot  be 
too  rigid  on  this  point. 


*** 


sVperintendekt  op  common  schools.  39 

(anonymous.) 

When  fuel  is  furnished  in  kind,  it  must  be  apportioned  according  to  the  time 
each  scholar  has  attended  school. 

The  question  submitted  to  the  Superintendent  in  this  case, 
was  whether  each  scholar  should  furnish  an  equal  quantity  of 
wood,  without  regard  to  the  time  he  had  attended  school,  or 
whether  it  should  be  apportioned  according  to  the  time  of  at- 
tendance :  the  district  not  having  voted  a  tax  to  purchase  fuel. 

By  A.  C.  Flagg,  March  24,  1829.  By  the  84th  and  85th 
sections,  the  fuel  is  to  be  graduated  according  to  the  number  of 
children  sent  to  school.  They  are  to  pay  in  the  same  ratio  that 
they  pay  for  tuition,  and  this  has  been  established  as  a  just 
measure  of  apportionment.  If  the  district  requires  an  assess- 
ment according  to  property,  they  can  then  vote  to  proVide  the 
fuel  by  a  tax  upon  the  district.  The  apportionment  by  the 
scholar  may  in  some  cases  operate  severely ;  but  if  a  poor  man 
is  unable  to  pay  tuition,  and  sends  his  child  but  half  the  term, 
ought  he  to  b6  taxed  as  much  for  fuel  as  the  person  who  is  able 
to  send  three  or  four  scholars  for  the  same  period,  or  for  the  whole 
time  1  It  is  undeniable  that  in  hundreds  of  cases  a  person  with 
a  large  number  of  children  is  unable  to  send  them  all  to  school, 
and  he  sends  one  or  two  out  of  four  or  five  who  ought  to  attend, 
and  is  thus  compelled  by  his  poverty,  to  make  them  take  turns 
in  getting  a  common  school  education.  Would  it  be  just  for 
such  a  person  to  be  charged  as  much  for  fuel  as  his  more  wealthy 
neighbor,  who  is  abundantly  able  to  keep  all  his  children  con- 
stantly in  school  ?     Certainly  not. 

The  Trustees  of  school  district  No. in  the  town 

of  Chester,  ex  parte. 

When  a  new  district  is  formed,  and  a  sum  ot  money  is  received  as  its  proportion 
of  the  value  of  the  school-house  of  the  district  from  which  it  is  taken,  this 
sum  must  be  applied  to  the  erection  of  a  school-house  in  the  new  district,  and 
in  reduction  of  the  taxes  of  the  persons  on  account  of  whose  property  it  was 
received. 

A  new  school  district  was  formed  in  the  town  of  Chester  by  a 
division  of  districts  No.  1  and  2.  A  Mr.  Mead  was  set  off  from 
No.  2,  and  the  sum  of  $5  was  adjudged  by  the  commissioners  of 
common  schools  to  be  due  from  that  district  to  the  new,  on  ac- 
count of  the  property  of  Mr.  Mead,  and  as  his  proportion  of  the 
value  of  the  school-house.  The  question  submitted,  was  whether 
this  sum  was  to  be  applied  to  his  exclusive  benefit. 

By  A.  C.  Flagg,  March  30,  1829.     By  section  69,  when  a 

new  district  is  formed  from  an   old  district  having  a  school- 

jj  house,  a  proportional  part  of  the  value  of  the  house  is  to  be  paid 

■■5.  »'•  ^' 
♦#•  =-  '»• 

-t  •>.  •■ 


40  CASES    DECIDED   BY    THE 

to  the  trustees  of  the  new  district,  and  by  them  applied  to  the      ^...  . 
erection  of  a  new  school-liouse.     But  if  a  tax  is  to  be  raised  in  :;^H|| 
addition  for  the  school-house,  the  moneys  received  from  the  old 
district  "  shall  be  allowed  to  the  credit  of  the  inhabitants  who 
were  taken  from  the  former  district  in  reduction  of  any  tax  that 
may  be  imposed  for  the  erection  of  a  school-house."     The  pro- 
portion ascertained  by  the  commissioners,  according  to  sec.  68, 
as  coming  to  the  new  district  as  the  proportion  of  Mr.  Mead's 
property,  is  $o^    Therefore  in  making  your  assessment  of  the 
tax  to  build  a  school-house,  yon  must  credit  Mr.  Mead  with  this         ^, 
$5,  and  the  same  course  must  be  taken  with  all  those  who  were        « 
set  off  from  the  other  district.     If  the  amount  credited  exceeds        ^ 
the  assessment  of  Mr.  Mead,  or  any  other  individual,  that  ex- 
cess goes  for  the  benefit  of  the  whole  district ;  the  trustees  being 
required  to  apply  it  for  the  procurement  of  a  school-house,  and  as 
there  is  no  provision  to  apply  any  of  it  to  the  use  of  individuals 
except  in  reduction  of  taxes  for  the  school-house,  it  cannot  be 
paid  to  the  individual. 

The  Trustees  of  school  district  No. in  the  towa 

of  Martinsburgh,  ex  parte. 

Unlees  some  person  claims  a  reduction  of  his  valuation,  trustees  are  not  required 
to  give  notice  of  the  assessment  of  a  tax. 

Thb  was  an  application  from  the  trustees  of  school  district 

No. in   the   town   of  Martinsburgh,   for  the  opinion   of 

the  Superintendent  as  to  the  necessity  of  giving  notice  of  their 
intention  to  assess  a  tax,  in  order  that  those  who  intended  to 
claim  a  reduction  in  the  valuation  of  their  property,  might  come 
in  and  avail  themselves  of  the  provisions  of  the  statute  in  such 
cases. 

By  A.  C.  Flagg,  April  20,  1829.  A  taxable  inhabitant  can 
claim  a  reduction  before  the  trustees  make  out  the  assessment ; 
because  by  sec.  79,  the  valuation  is  to  be  taken  from  the  assess- 
ment roll  of  the  town.  It  is  therefore  from  the  assessm«it  oC 
the  town  that  he  claims  a  reduction.  When  such  claim  is  made, 
the  trustees  are  to  proceed  in  the  same  manner  as  the  assessors 
are  required  to  proceed,  as  you  will  see  by  vol.  1  R.  S.  page  392. 
You  are  to  make  out  the  assessment  roll,  leave  it  with  one  of 
the  trustees  for  20  days,  giving  notice  thereof  in  3  or  more  pla^ 
ces  in  the  district ;  and  then  the  trustees  must  meet  agreeably  to 
sec.  82,  same  page,  and  adjust  the  assessment. 

If  no  person  claims  a  reduction,  then  the  trustees  can  make 
out  the  assessment  at  once,  conforming  to  the  town  assessment. 
In  su^h  case  the  notices  are  not  required;  the  inhabitants  "  know 
how  J  nd  for  what  they  pay  their  money,"  because  they  vote  the 

4 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  41 

tax  for  the  specific  object,  before  the  trustees  are  authorized  to 
make  the  assessment. 

The  Trustees  of  school  district  No. in  the  town 

of  Portage,  ex  parte. 

If  the  trustees  of  a  school  district  expend  money  for  repairing  the  school-house 
without  being  authorized  by  the  inhabitants,  a  tax  to  cover  the  expenditure 
may  be  collected,  if  voted  at  a  subsequent  time. 

The  trustees  of  school  district  No. in  the  town  of  Por- 
tage, finding  the  school-house  out  of  repair,  expended  the  sum 
of  fifteen  dollars  for  the  purpose  of  putting  it  in  order,  without 
any  authority  from  the  inhabitants,  and  paid  the  amount  out 
of  their  own  pockets.  At  the  next  annual  meeting  of  the 
district,  the  facts  were  submitted  to  the  inhabitants,  who  voted  a 
tax  equal  to  the  amount  expended  by  the  trustees,  for  the  pur- 
pose of  reimbursing  them.  By  mistake  the  tax  was  not  collect- 
ed within  the  time  prescribed  by  law,  and  a  special  meeting 
having  been  called,  the  same  amount  was  again  voted  for  the 
same  purpose.  Some  of  the  inhabitants  threatened  to  resist  the 
collection  of  the  tax  upon  the  ground  that  there  was  no  authority 
under  the  circumstances  to  vote  it;  and  the  opinion  of  the  Su- 
perintendent was  solicited  with  a  view  to  an  amicable  adju^- 
ment  of  the  difficulty. 

By  A.  C.  Flagg,  May  4,  1829.  The  tax  voted  under  the 
circumstances  set  forth  in  the  application  is  legal,  and  the  col- 
lection of  it  is  evidently  just  and  equitable,  and  cannot  be 
evaded.  The  district  might  have  refused  to  vote  the  tax  on  the 
ground  that  the  expediency  of  repairing  the  house  should  have 
been  submitted  to  the  meeting  before  it  w^as  done ;  but  having 
voted  the  tax,  the  district  meeting  has  sanctioned  the  necessity  of 
the  repairs,  and  the  propriety  of  the  conduct  of  the  trustees  :  the 
meeting  had  a  perfect  right  to  vote  the  tax,  and  it  is  the  duty  of 
the  trwstees  to  collect  and  pay  it  to  those  who  have  made  the  re- 
pairs for  the  benefit  of  the  district. 

Amasa  B.  Gibson  and  others,  of  the  town  of  Crown- 
point,  ex  parte. 

If  school  moneys  apportioned  to  school  districts  cannot  be  recovered  of  the  com- 
missioner who  received  them,  the  loss  falls  on  the  districts. 

In  the  year  1828,  one  of  the  commissioners  of  common 
schools  of  the  town  of  Crownpoint  received  the  school  moneys 
set  apart  for  that  town ;  but  no  part  of  the  amount  so  received 
was  paid  over  to  the  school  districts.  This  was  an  application 
to  the  Superintendent  from  some  of  the  inhabitants  of  the  town, 
to  ascertain  what  remedy  they  had  against  the  commissioner. 


42  »       CASES    DECIDED   BY   THE 

By  A.  C.  Flagg,  May  4,  1829.  If  the  old  commissioners 
made  an  apportionment  of  the  money,  then  the  trustees  can 
prosecute  the  commissioners,  or  the  one  who  has  the  money, 
under  the  90th  section  of  the  school  law.  This  proceeding  does 
not  change  the  risk  at  all,  for  the  districts  lose  the  money  if  it  is 
not  recovered  from  the  individual  commissioner.  If  the  money 
was  not  apportioned,  it  ought  to  have  been  paid  over  to  the  new 
commissioners ;  and  if  withheld,  the  person  so  offending  is  liable 
to  forfeit  one  hundred  dollars,  under  section  38  of  the  school 
law. 

The  Inspectors  of  Common  Schools  of  the  town  of 
Ripley,  ex  "parte. 

Inspectors  of  common  schools  must  determine  the  degree  of  learning  and  ability 
necessary  for  a  teacher. 

This  was  an  application  from  the  inspectors  of  common 
schools  of  the  town  of  Ripley,  for  the  direction  of  the  Superin- 
tendent with  regard  to  the  following  question,  viz:  Whether 
any  thing  short  of  a  knowledge  of  reading,  writing,  arithmetic, 
English  grammar,  and  geography,  should  be  deemed  by  them 
a  sufficient  qualification  for  a  teacher,  in  order  to  entitle  him  to 
receive  a  certificate. 

By  A.  C.  Flagg,  May  6, 1829.  The  qualifications  of  teach- 
ers are  left  to  the  discrimination  and  judgment  of  inspectors. 
They  give  the  certificate,  and  they  ought  to  be  satisfied  that  it 
is  given  to  those  only  whose  learning  and  ability  fit  them  in  all 
respects  to  instruct  common  schools.  In  revising  the  school 
law,  the  revisers  inserted  a  provision  that  no  candidate  for  teach- 
ing should  be  deemed  qualified  unless  upon  examination  he 
should  appear  to  be  well  instnicted  in  "  reading,  orthography, 
penmanship,  English  grammar,  geography,  and  arithmetic,  in- 
cluding vulgar  and  decimal  fractions."  This  provision  however 
was  stricken  out  by  the  legislature,  and  the  whole  matter  is  left 
to  the  discretion  of  the  inspectors.  It  is  certainly  very  desirable 
that  teachers  should  be  able  to  instruct  in  all  the  branches  above 
enumerated. 

The  Trustees  of  school  district  No.  —  in  the  town  of 
Martinsburgh,  ex -parte. 

Trustees  of  school  districts  must  give  notice  of  the  assessmentrof  a  tax  in  all 
cases  where  a  reduction  is  claimed,  or  where  the  valuations  of  property  can- 
not be  ascertained  from  the  last  assessment  roll  of  the  town. 

This  was  a  case  in  which  a  reduction  had  been  claimed  by 
one  of  the  inhabitants  of  school  district  No. in  the  town  of 

"*^  ^■ 


SUPERINTENDENT    OF    COMMON   SCHOOLS.  43 

Martinsburgh,  in  the  amount  of  his  taxable  property,  a  tax 
having  been  voted  by  the  district.  The  reduction  was  allowed 
to  the  amount  claimed,  and  the  trustees  proceeded  to  assess  the 
tax,  without  giving  the  notice  required  by  law. 

By  A.  C  Flagg,  May  6,  1829.  Trustees  are  to  give  notice 
as  to  assessments  in  two  cases:  1st,  when  a  reduction  is  claimed, 
and  2d,  when  the  valuation  cannot  be  ascertained  from  the  as- 
sessment roll  of  the  town.  You  ask,  why  give  notice,  if  the 
man  claiming  a  reduction  gets  all  the  relief  he  wants  ?  I  an- 
swer, because  every  taxable  inhabitant  of  the  district  is  relatively 
interested  in  such  reduction.  Taxation  to  be  just  must  be  equal. 
The  town  assessment  is  evidence  that,  as  between  the  inhabi- 
tants of  a  district,  the  assessment  is  proportionably  just.  If  you 
deduct  from  one,  you  leave  such  deduction  to  be  paid  by  all  the 
rest  of  the  tax-payers  of  the  district :  they  are  entitled  to  notice, 
and  an  opportunity  to  show  that,  in  justice  to  them,  a  reduction 
ought  not  to  be  made  in  the  assessment  of  the  person  complain- 
ing. When  no  notice  is  required,  the  assessment  may  be  made 
immediately  after  the  meeting  closes,  for  in  this  case  it  is  to  be 
observed,  that  the  relative  value  of  all  the  property  has  been 
adjusted  by  sworn  assessors,  and  this  assessment  thus  made  out, 
is  to  be  adhered  to  unless  the  taxable  property  cannot  be  ascer- 
tained from  such  assessment  roll,  or  unless  a  reduction  is  claimed. 
As  to  the  assessment  roll  and  tax-list :  In  towns,  the  assessors 
make  out  the  assessment  roll ;  and  the  supervisors  the  tax-list, 
after  the  amount  levied  on  the  town  is  ascertained.  In  districts, 
the  trustees  know  the  amount  to  be  collected  before  hand,  asd 
they  do  in  this  matter  what  is  done  by  assessors  and  supervisors 
both,  in  town  matters.  They  first  settle  the  assessment,  if  there 
is  any  question  about  the  town  assessment,  and  then  apportion 
or  carry  out  the  tax  against  each  name.  If  there  are  ten  persons 
in  your  district,  and  all  the  property  for  which  they  are  taxed  in 
the  town  lies  within  the  bounds  of  the  district,  then  the  valua- 
tions are  to  be  taken  from  the  assessment  roll  of  the  town,  (un- 
less some  person  claims  a  reduction,)  and  the  tax-list  may  be 
made  out  without  notice  or  delay. 

The  Trustees  of  school  district  No.  19  in  the  town 
of  Schoharie,  ex  parte. 

If  a  minor  is  chosen  clerk  of  a  school  district,  and  he  officiates  in  that  capacity, 
his  acts,  so  far  as  the  public  and  third  persons  are  concerned,  are  valid. 

In  school  district  No.  19  in  the  town  of  Schoharie,  a  minor 
was  chosen  clerk  at  the  annual  meeting  of  the  inhabitants.  At 
a  subsequent  time  a  tax  was  voted  to  build  a  school-house  at  a 
special  meeting,  the  notices  for  which  were  given  by  the  clerk. 


.*v 


«»-. 


44  CASES    DECIDED    BY    THE 

Some  of  the  inhabitants  contended  that  the  proceedings  of  the 
meeting  were  void,  by  reason  of  the  non-age  of  the  clerk,  and 
the  case  was  presented  to  the  Superintendent  for  his  decision. 
By  A.  C.  Flagg,  May  13,  1829.  It  is  represented  that  in 
district  No.  19,  Schoharie,  in  which  a  tax  has  been  voted  and 
assessed  for  a  school-house,  some  of  the  persons  taxed  object  to 
paying,  on  the  alleged  ground  that  the  clerk  of  the  district  was 
under  age.  It  seems  that  he  was  chosen  by  the  district,  and  al- 
lowed to  officiate  as  clerk :  his  acts,  so  far  as  the  rights  of  third 
persons  and  the  public  are  concerned,  are  valid ;  and  in  this  case 
particularly,  the  non-age  of  the  clerk  is  wholly  unimportant,  as 
the  question  is  between  the  trustees  and  collector  on  the  one 
hand,  and  the  taxable  inhabitants  on  the  other.* 

Joseph  SafFord  and  others,  inhabitants  of  school  dis- 
trict No.  2  in  the  town  of  Ballston,  against  the 
Commissioners  of  Common  Schools  of  said  town. 

The  decisions  of  the  Superintendent  are  final. 

If  a  school  district  is  established  by  a  decision  of  the  Superintendent,  it  cannot 
be  dissolved  by  the  commissioners  of  common  schools. 

The  facts  of  this  case  are  fully  disclosed  in  the  opinion  of  the 
Superintendent. 

By  A.  C.  Flagg,  May  16,  1829.  In  the  case  of  the  appeal 
of  Joseph  Safford  and  others  from  the  decision  of  the  commis- 
sioners of  common  schools  of  the  town  of  Ballston,  in  dissolving 
district  No.  2  and  annexing  the  same  to  other  districts,  on  the 
12th  day  of  April,  1828 :  It  appears  by  the  affidavit  of  Elisha 
Miller,  a  resident  of  said  district  No.  2,  "that  this  division  was 
unknown  at  the  time  it  was  made,  to  the  deponent,  and  others 
aggrieved  by  the  decision,  as  this  deponent  is  informed  and  be- 
lieves, and  that  the  new  arrangement  is  not  satisfactory  to  the 
inhabitants  of  either  as  it  now  stands.  That  previous  to  this 
being  done  by  the  commissioners,  some  of  the  inhabitants  of 
these  different  districts  now  concerned,  were  present  on  or  about 
the  last  Tuesday  of  March,  1828,  and  objected  to  ^  being  done, 
and  the  deponent  supposed  it  was  given  up,  until  ''some  months 
after  the  deponent  heard  of  the  division  being  made." 

It  appears  also  that  notice  of  this  appeal  has  been  duly  eerv- 
ed  on  the  commissioners  of  common  schools,  from  whom  no 
statement  has  been  received  in  relation  to  the  number  of  petition- 

*  In  the  case  of  Ring  vs.  Grout,  7  Wendell,  341,  the  Supreme  Court  were  of 
opinion  that,  although  a  collector  of  a  school  district  ought  to  be  a  resident  of  the 
district,  if  the  inhabitants  "  should  confer  the  appointment  on  a  non-resident, 
he  would  be  an  officer  de  facto,  so  that  his  official  acta  would  not  make  him  a 
trespasser." 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  45 

crs  for  the  dissolution  of  district  No.  2,  or  the  reasons  which  in- 
fluenced the  decision  complained  of. 

It  does  not  appear  from  the  annual  reports  for  several  years 
that  districts  Nos,  4,  8,  10  and  11  required  the  additions  made 
to  them  by  the  breaking  up  of  district  No.  2 ;  nor  does  it  appear 
that  district  No.  2  was  dissolved  on  account  of  any  inability  to 
support  a  school. 

The  appellants  in  this  case  ask  for  relief  not  only  from  the  de- 
cision of  the  commissioners  in  1828,  but  from  a  former  decision 
of  the  Superintendent  of  Common  Schools,  made  in  1823,  in 
relation  to  districts  1,  2  and  11.  As  the  former  decision  ot  the 
Superintendent  is  thus  brought  under  consideration,  it  becomes 
necessary  to  inquire  and  ascertain  its  bearing  upon  the  contro- 
versy now  under  consideration. 

That  decision,  which  was  recorded  in  the  town  clerk's  book, 
August  21,  1823,  describes  minutely  the  boundaries  of  districts 
No.  1,  2  and  11,  and  declares  that  the  <•  territory  of  district  No.  2 
shall  remain  a  district  to  be  called  number  two."  This  decision 
was  made  on  an  appeal  under  the  7lh  section  of  the  amended 
school  act  of  1822,  which  section  authorizing  such  appeal,  de- 
clares the  decision  of  the  Superintendent  to  be  final.  If  the  ques- 
tion which  came  up  before  the  commissioners  in  April,  1828,  was 
the  same  question  which  agitated  the  same  territory  in  1823, 
and  was  then  the  subject  of  an  appeal,  and  was  decided  by  the 
Superintendent,  what  authority  had  the  commissioners  to  inter- 
fere with  a  question  thus  decided,  and  which  decision  is  declared 
by  the  law  to  be  final  ?  If  the  word  final  were  construed  to 
mean  only  that  the  question  should  not  be  carried  up  to  a  higher 
tribunal,  it  would  not  reach  the  main  object  for  which  the  act  of 
1822  was  passed  ;  which  was  the  establishment  of  a  tribunal 
where  on  an  appeal  the  controversies  and  litigations  in  districts 
should  be  finally  settled  and  put  at  rest ;  and  that  the  parties 
shoiild  not  only  be  protected  from  the  expense  of  an  appeal  to 
the  courts,  but  that  the  districts  should  not  be  again  harassed 
by  the  same  question  at  another  meeting  of  the  commissioners. 
That  such  was  the  main  object  of  the  7th  section  of  the  act  of 
1822,  is  evident  from  the  language  of  the  report  in  relation  to 
.'^aid  section,  made  by  the  Superintendent,  viz.,  that  this  provi- 
sion was  required  in  order  to  enable  him  ''to  put  an  end  to  the 
controversies  submitted  to  his  decision." 

The  act  of  the  commissioners  of  April  12,  1828,  having  rela- 
tion to  the  same  question  which  had  previously  been  decided  by 
the  Superintendent,  is,  in  my  opinion,  void  and  of  no  efl^ect.  . 

As  to  the  question  of  restoring  the  old  bounds  of  districts  No. 
1  and  2,  inasmuch  as  that  was  acted  upon  and  settled  by  a 
former  Superintendent,  five  years  since,  under  which  decision 


;^ 


scHSia-hous 


CASES    DECIDED    BY   THE 


1-nouses  have  been  erected,  and  district  arrangements  en- 
tered into  in  reference  to  the  bounds  established  by  that  decision, 
I  do  not  think  it  is  expedient  to  do  more  at  this  time  than  to  de- 
clare void  the  order  of  the  commissioners  of  April,  1828. 

It  is  therefore  decided,  that  the  acts  and  doings  of  the  com- 
missioners of  common  schools  of  the  town  of  Ballston,  on  the 
12th  day  of  April,  1828,  in  relation  to  the  dissolution  of  district 
No.  2,  and  annexing  the  inhabitants  of  said  district  to  districts 
No.  4,  8,  10  and  11,  be  and  the  same  is  hereby  declared  to  be 
of  no  effect. 

(anonymous.) 

In  making  out  a  tax-list  the  names  of  the  taxable  inhabitants  must  be  given. 
•'  The  widow  and  heirs  of  A.  B.  deceased"  is  not  a  sufficient  designation  of  the 
persons  to  be  taxed. 

By  A.  C.  Flagg,  June  8,  1829.     A  tax  made  out  against  the 
''  widow  and  heirs  of  A.  B.  deceased"  is  not  a  proper  designation 
\  under  the  statute,  which  requires  a  hst  of  the  names.     Suppos- 

ing the  property  to  be  owned  or  possessed  by  the  widow  after  the 
decease  of  her  husband,  the  trustees,  according  to  section  76,  (as 
well  as  sub.  3  of  75,)  should  have  assessed  the  property  to  her 
by  name.  By  sec,  88,  the  warrant  gives  authority  to  collect 
"from  every  person  in  such  tax-bill  named,  the  sum  therein  set 
opposite  to  his  name,"  <fec. 

The  Inspectors  of  Common  Schools  of  the  town  of 
Guilderland,  ex  parte. 

Inspectors  of  common  schools  may  refuse  to  give  a  teacher  a  certificate  from 
their  personal  knowledge  that  his  moral  character  is  not  good. 

Inspectors  may  annul  a  certificate  on  account  of  the  immoral  character  of  the 
teacher,  although  he  may  perform  all  his  duties  in  school  properly. 

This  was  an  application  to  the  Superintendent,  from  the  in- 
spectors of  common  schools  of  the  town  of  Guilderland,  for  the 
opinion  of  the  Superintendent  upon  two  questions  presented  to 
him. 

By  A.  C.  Flagg,  June  8,  1829.  In  judging  of  the  moral 
character  of  a  teacher,  the  inspector  can  certainly  act  from  his 
own  knowledge ;  and  if  he  knows  that  a  person  is  not  of  good 
moral  character,  it  is  his  duty  to  refuse  to  certify  for  him.  The 
inspector  certifies  on  his  conscience,  and  although  he  cannot  al- 
ways know  whether  the  candidate  is  of  good  moral  character, 
^-  yet  he  should  not  certify  when  he  knows  the  contrary. 

W  Your  2d  question  is,  "  can  the  inspectors  annul  a  certificate, 

f^        for  immoral  habits,  provided  the  teacher  performs  all  his  official 
duties  well  during  his  school  hours?"    I  answer,  they  can.    The 


m> 


SUPERINTENDENT    OF   COMMON    SCHOOLS.  47 

moral  character  of  the  teacher  is  of  the  first  importance,  and  if 
the  inspectors  have  given  a  certificate  to  a  person  of  bad  habits 
fioni  want  of  knowledge  of  his  real  character,  th^y  ought  to 
correct  the  evil  as  soon  as  it  is  discovered.  The  teacher  offers 
himself  as  one  qualified  according  to  law,  and  if  his  -moral  char- 
acter is  not  good,  he  is  an  impostor,  and  his  certificate  ought  to 
be  annulled. 

The  Trustees  of  school  district  No.  3  in  the  town  of 
China,  ex  parte. 

A  school-house  built  by  subscription  may,  if  under  the  control  of  the  trustees, 
be  kept  in  repair  by  a  tax  on  the  property  of  the  district. 

In  the  year  1827,  a  school-house  was  built  by  subscription  in 
school  district  No.  3  in  the  tow^n  of  China,  and  had  been  con- 
stantly occupied  as  a  district  school-house.  In  April,  1829,  a 
tax  was  voted  for  the  purpose  of  repairing  it;  doubts  having 
arisen  as  to  the  legality  of  the  tax,  the  trustees  made  application 
to  the  Superintendent  for  his  direction  in  the  case. 

By  A.  C.  Flagg,  July  15,  1829.  If  the  house  in  your  dis- 
trict has  been  voted  as  the  district  school-house,  and  if  it  is  oc- 
cupied without  interruption  as  such,  and  is  under  the  control  of 
the  trustees  for  that  purpose,  I  can  see  no  impropriety  in  collect- 
ing a  tax  for  its  repair.  If  it  has  been  built  by  voluntary  sub-*  ^ 
scription,  the  district  can  at  least  afford  to  keep  it  in  repair  by  a  * 
tax.  If  however  it  is  so  far  under  the  control  of  individuals  that 
they  can  prevent  the  trustees  from  using  it,  it  would  not  be  pru- 
dent for  them  to  repair  it.  ^  ..^L 

(anonymous.) 

All  children  residing  in  a  school  district  may  of  right  attend  the  district  school. 
If  a  warrrant  to  collect  a  tax  is  renewed,  the  collector  in  office  at  the  time  of 

such  renewal  must  execute  it. 
All  children  attending  the  district  school  must  be  charged  at  the  same  rate  for 

tuition,  without  regard  to  the  studies  pursued  by  them. 
If  a  parent  is  not  wholly  exempted  by  the  trustees,  he  must  be  charged  the  full  - 

price  of  tuition.  *" 

The  following  questions  were  presented  for  the  decision  of  the 
Superintendent : 

1st.  Can  the  trustees  refuse  admittance  to  any  child  in  the 
district? 

2d.  Can  they  renew  the  warrant  to  the  old  collector,  and  col- 
lect dues  of  last  year  ? 

3d.  Have  they  a  legal  right  to  make  a  difference  in  tuition 
between  scholars  studying  different  branches? 

4th.  Can  they  charge  different  sums  for  studying  the  same 


*^ 


48       ^^^*» '"^ '«•  CASES    DECIDED    BY    THE 


branches,  b^ween  maOcimum  and  minimum,  having  regard  to 
the  ability  of  the  parent,  or  must  they  charge  the  full  price  or 
nothing?       * 

By  A.  C.  Flagg,  July  16,  1829.  To  your  first  question,  I 
answer  that  the  trustees  cannot  refuse  admittance  to  any  child 
whose  residence  is  in  the  district,  if  the  child  complies  with  the 
reasonable  and  proper  regulations  of  the  school. 

2d.  The  trustees  for  the  time  being  can  renew  a  warrant  is- 
sued by  themselves  or  their  predecessors ;  but  the  warrant  must 
be  executed  by  the  new  collector,  or  the  one  who  is  collector  for 
the  time  being. 

3d.  All  the  scholars  in  the  district  school  must  be  charged  al 
the  same  rate.  By  sec.  75,  sub.  12,  the  trustees  are  required 
to  ascertain  by  an  examination  of  the  school  lists,  the  "number 
of  days  for  which  each  person  shall  be  liable  to  pay  for  instruc- 
tion, and  the  amount  payable  by  each."  And  by  subdivision  8 
of  the  same  section,  they  are  to  pay  the  public  money  for  teach- 
ers' wages,  so  far  as  it  is  sufficient,  and  to  collect  the  residue 
"from  all  persons  liable  therefor."  This  hability,  it  seems  by  the 
law,  is  to  be  graduated  according  to  the  number  of  days  sent  by 
each  person.  The  same  principle  of  graduation  is  established 
in  relation  to  fuel,  by  sec.  85,  which  provides  that  the  proportion  J^ 
of  fuel  which  each  person  shall  be  liable  to  furnish  shall  be  de  ^ . 
4ermined  "  according  to  the  number  of  children  sent  by  each." 
By  a  vote,  however,  it  may  be  graduated  according  to  property. 

4th.  The  trustees  must  charge  the  same  rates  of  tuition  to 
all  the  inhabitants  of  the  district  alike,  without  reference  to  the 
ability  to  pay,  or  the  studies  pursued,  unless  they  think  proper 
to  exempt  them  wholly.  The  public  money  (by  sec.  75,  sub.  8) 
is  required  to  be  paid  to  the  teacher  in  satisfaction  of  the  total 
amount  of  his  claim,  and  necessarily  is  shared  alike  by  all  who 
have  sent  to  school,  without  reference  to  the  ability  of  the  pa- 
rent ;  and  the  residue  is  collected  on  the  principle  stated  in  the 
above  answer  to  question  No.  3. 

The  Commissioners  of  Common  Schools  of  the  town 
of  Fabius,  ex  parte. 

The  certificate  of  the  commissioners  that  more  than  four  hundred  dollars  is  ne- 
cessary for  a  school-house,  should  be  given  before  the  additional  sum  is  voted. 

This  was  an  application  for  the  opinion  of  the  Superintendent 
in  a  case  where  a  school  district  had  voted  a  tax  of  more  than 
$400  for  the  erection  of  a  school-house,  and  afterwards  applied 
to  the  commissioners  for  the  certificate  required  by  law  when  a 
larger  sum  than  ^400  is  to  be  raised. 


I 


*■ 


*^ 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  49 

By  A.  C.  Flagg,  July  17,  1829.  You  inquire  whether  the 
opinion  of  the  commissioners  that  a  greater  sum  than  $400  is 
required  for  a  school-house,  should  be  obtained  before,  or  whether 
it  would  answer  if  obtained  after  the  vote  of  the  district?  In 
ray  opinion,  it  should  be  obtained  before  the  vote,  to  legalize  the 
raising  of  more  than  $400.  To  justify  the  assessment  and  col- 
lection of  a  tax,  the  district  meeting  must  have  authority  to  vote 
that  tax.  Without  the  certificate  of  the  commissioners,  where 
is  their  authority  to  vote  a  tax  for  a  school-house  of  more  than 
$400  ?  It  is  not  to  be  found.  Sectiqn  64  expressly  says,  "  no 
tax  to  be  voted,"  <fcc.,  shall  exceed  the  sum  of  $400  unless 
the  commissioners  shall  certify  in  writing  their  opinion  that  a 
larger  sum  ought  to  be  raised,  and  shall  specify  -the  sum.  Un- 
til this  certificate  is  made,  the  district  meeting  is  not  vested  \vith 
the  requisite  authority  to  pass  the  vote  for  a  greater  sum  than 
$400. 

The  Trustees  of  school  district  No.  11  in  the  town 
of  Schodack,  ex  parte. 

If  an  annual  meeting  in  a  school  districtis  neglected,  the  trustees  hold  over  until 
the  next  annual  meeting,  and  until  others  shall  be  elected  in  their  places. 

Accidental  vacancies  in  district  offices  may  be  filled  at  special  meetings  called 
by  the  trustees. 

In  April,  1827,  the  annual  meeting  of  school  district  No.  11 
was  held,  and  district  officers  were  regularly  elected.  In  April 
of  the  years  1828  and  1829,  the  clerk  of  the  district  neglected 
to  give  notices  for  the  annual  meeting,  and  there  was  no  choice 
of  officers  in  either  year  at  the  usual  time.  In  July,  1829,  a 
special  meeting  of  the  inhabitants  was  called  by  the  trustees 
who  were  elected  in  April,  1827,  and  who  had  continued  to  of- 
ficiate in  that  capacity  during  the  intermediate  time ;  doubts 
having  arisen  as  to  their  right  to  call  a  meeting  of  the  inhabi- 
tants, or  to  act  as  trustees,  all  proceedings  were  suspended,  and 
the  case  was  submitted  to  the  Superintendent  for  his  decision. 

By  A.  C.  Flagg,  July  23,  1829.  By  sec.  70,  district  offi- 
cers hold  their  offices  for  one  year,  "  and  until  others  shall  be 
elected  in  their  places."  Under  this  latter  provision  the  district 
officers  hold  over  in  case  the  annual  meeting  is  neglected  or  al- 
lowed to  pass  without  a  choice  of  officers.  The  authority  to 
hold  over  and  to  exercise  the  duties  of  the  offices,  is  as  distinctly 
recognized  by  sec.  70,  as  it  is  in  cases  of  civil  offices  by  chap. 
328,  entitled  "  An  act  to  prevent  vacancies  in  civil  offices,"  pass- 
ed Nov.  27,  1824,*  under  which  law  persons  have  exercised  the 

*Sec.  9,  page  117,  vol.  1,  R.  S. 

4 


50  CASES    DECIDED    BY   THE 

duties  of  various  offices,  such  as  surrogates,  judges,  &c.,  for  yeai-s 
after  the  term  for  which  they  were  appointed  had  expired. 

The  trustees  of  No.  11  had  authority  to  call  district  meetings, 
they  having  held  over  under  sec.  70.  If  there  are  vacancies  in 
any  of  the  offices,  they  can  be  filled  at  a  special  meeting.  If 
not,  the  appointment  of  officers  must  be  at  the  annual  meeting 
in  April. 

The  Trustees  of  school  district  No. in  the  town 

of  Salina,  ex  parte, 

A  non-resident  owTier  occupying  a  lot  by  his  agent  is  taxable  in  the  same  man- 
ner as  though  he  resided  in  the  district. 

This  was  an  application  for  the  opinion  of  the  Superintendent 
in  a  case,  the  facts  of  which  are  fully  stated  in  his  answer. 

By  A.  C.  Flagg,  August  15,  1829.  You  inquire  whether  a 
non-resident  of  a  district  is  to  be  taxed  for  the  cleared  land  on 
the  whole  lot,  under  the  following  state  of  facts : 

"A  person  not  living  in  the  town  owns  within  the  district  a 
military  lot  of  550  acres.  There  are  60  acres  improved  on  it 
which  the  owner  cultivates  by  his  agents,  who  live  on  the  lot. 
The  agents  have  families,  and  are  of  course  inhabitants  of  the 
district." 

You  are  entirely  correct  in  your  opinion  that  the  owner  is  tax- 
able under  the  77th  section,  and  this,  too,  "in  the  same  manner 
as  if  he  actually  resided  in  the  district." 

By  the  old  law  cultivated  farms  belonging  to  non-residents 
were  not  taxable  for  school  purposes :  the  78th  section  is  new, 
(see  "  alterations"  p.  40  of  the  new  act)  and  was  designed  to 
reach  such  lands  as  are  cultivated  and  improved,  but  not  occu- 
pied ;  and  in  such  cases,  and  such  only,  the  cultivated  or  cleared 
part  of  a  lot  is  assessed,  and  that  which  is  wild,  or  not  cleared, 
is  exempt. 

The  distinction  is,  that  where  there  is  a  family  residing  on 
the  lot,  and  requiring  school  accommodations  in  the  district,  the 
whole  lot  shall  be  taxed,  the  same  as  if  the  owner  resided  upon 
it.  But  where  there  is  no  resident  to  enjoy  these  accommoda- 
tions, and  where  the  owner  resides  in  another  district,  he  shall 
only  be  assessed  for  the  number  of  acres  actually  cultivated. 

Exemption,  under  the  78th  section,  as  you  remark,  would  be 
very  clear,  were  there  not  a  resident  agent  upon  the  lot.  But 
this  makes  it  equally  clear  that  the  owner  is  liable  to  taxation 
for  the  whole  550  acres,  under  the  77ih  section. 


'^ 


SUPERINTENDENT    OF    COMMON   SCHOOLS.  51 

Moses  Tyler  and  others,  inhabitants  of  school  dis- 
trict No.  2  in  the  town  of  Watervliet,  ex  'parte. 

Trustees  of  school  districts  cannot  allow  any  part  of  the  district  school-house  to 
be  occupied  excepting  for  the  purposes  of  the  district  school. 

In  school  district  No.  2  in  the  town  of  Watervliet,  the  trus- 
tees rented  an  upper  room  in  the  school-house  to  a  woman  for 
the  purpose  of  keeping  a  private  school.  In  consequence  of  this 
proceeding,  objections  were  raised  by  several  of  the  inhabitants, 
upon  the  ground  that  the  district  school  was  disturbed,  and  that 
the  trustees  had  no  authority  to  appropriEite  any  part  of  the 
house  to  such  a  use. 

By  A.  C.  Flagg,  August  17.  1829.  In  district  No.  2,  Wa- 
tervliet, a  person  is  allowed  to  occupy  an  upper  room  of  the 
school-house ;  the  regular  school  is  disturbed,  and  many  of  the 
inhabitants  of  the  district  are  thereby  dissatisfied.  The  trustees 
have  no  authority  to  place  any  person  in  the  school-house,  ex- 
cept the  teachers  employed  by  them  for  the  district,  and  they 
ought  not  to  allow  a  proceeding  which  is  calculated  to  occasion 
divisions  in  the  district,  when  they  have  the  power  of  applying 
the  remedy.  The  trustees  have  the  custody  of  the  school-house; 
but  in  exercising  their  authority  they  must  adhere  to  the  law. 
The  custody  is  given  to  them  for  a  certain  purpose  which  the 
law  points  out,  and  they  are  responsible  for  any  abuse  of  their 
authority. 

The  Trustees  of  school  districts  No.  7,  9,  10  and  13, 
in  the  town  of  Dover,  against  the  Commissioners 
of  Common  Schools  of  said  town. 

If  a  bank  fails,  and  the  commissioners  of  common  schools  have  in  their  hands 
bills  of  the  bank,  received  as  school  moneys,  the  loss  falls  on  the  school  dis- 
tricts. 

This  was  an  application  to  the  Superintendent  for  his  decision 
upon  a  case  submitted.  The  material  facts  are  disclosed  in  the 
opinion  of  the  Superintendent. 

By  A.  C.  Flagg,  August  18, 1829.  The  treasurer  gave  the 
commissioners  of  common  schools  of  the  town  of  Dover  a  check 
on  the  Middle  District  Bank  in  March  last,  for  the  amount  of  the 
school  moneys  due  the  town.  The  commissioners  took  the  bills 
of  that  bank,  and  on  the  4th  of  April  the  money  was  apportion- 
ed to  the  districts,  and  paid  to  such  trustees  as  called  for  it,  the 
bills  being  then  in  good  credit.  Some  of  the  trustees  neglected 
to  call  for  their  apportionment  imtil  the  bank  failed,  and  now  re- 
fuse to  take  the  bills.  The  bills  on  hand  are  the  identical  bills 
received  as  the  school  money  and  apportioned  to  the  districts, 


52  CASES    DECIDED   BY   THE 

and  the  commissioners  ought  not  to  be  held  responsible  to  make 
good  the  failure.  The  law  fixes  the  day  for  apportioning  the 
money,  which  is  a  sufficient  notice  to  the  trustees  to  call  for 
it ;  if  they  neglect  to  do  so,  and  the  money  is  burnt  up,  or  be- 
comes valueless  by  the  failure  of  the  bank,  the  commissioners 
ought  not  to  suffer.  The  loss  must  fall  on  the  districts  or  the 
trustees. 

Nicholas  Chesebro  and  others,  inhabitants  of  school 
district  No.  8  in  the  town  of  Worcester,  against 
the  Commissioners  of  Common  Schools  of  said 
town. 

In  altering  school  districts,  notice  ought  to  be  given  to  the  parties  in  interest, 

although  such  notice  is  not  required  by  law. 
Two  teachers  may  be  employed  in  a  school  district,  if  it  is  necessary ;  but  a 

high  school  ought  not  to  be  set  up  by  the  trustees  without  the  concurrence  of 

the  inhabitant?. 

This  was  an  appeal  to  the  Superintendent  under  circumstan- 
ces which  are  fully  disclosed  in  his  decision. 

By  A.  C.  Flagg,  August  20,  1829.  In  the  case  of  the  ap- 
peal of  Nicholas  Chesebro  and  others,  from  the  decision  of  the 
commissioners  of  common  schools  of  the  town  of  Worcester,  it 
appears  that  on  the  9th  of  May,  1829,  the  commissioners  divided 
district  No.  8  in  said  town,  and  formed  a  new  district,  which  is 
designated  as  No.  6.  District  No.  8  had  91  children  between  5 
and  16  before  the  division,  55  of  whom  remain  in  No.  8,  and  36 
in  No.  6. 

The  Superintendent  is  called  upoii  in  this  case  to  annul  the 
doings  of  the  commissioners,  and  to  consolidate  the  district  which 
they  have  divided. 

1st.  On  the  ground  that  the  appellants  were  not  notified  of 
the  division.  2d.  As  being  detrimental  to  education ;  a  majority 
being  in  favor  of  having  a  large  school-house,  and  two  teachers 
employed,  one  for  large  and  on6  for  small  scholars.  3d.  That 
the  old  district  was  sufficiently  compact. 

As  to  the  first  objection,  it  was  wrong  in  the  commissioners 
not  to  give  full  notice  to  both  parties.  A  neglect  to  do  so  does 
not  affect  the  legal  formation  of  the  district,  as  the  statute  does 
not  in  terms  require  that  notice  to  the  parties  interested,  which 
it  was  reasonable  to  expect  commissioners  acting  impartially  be- 
tween neighbors  would  always  give. 

As  to  the  2d  objection — if  the  scholars  in  the  district  are  so 
numerous  as  to  require  two  teachers,  this  would  be  a  strong  rea- 
son in  favor  of  two  districts.  If  the  inhabitants  of  a  large  dis- 
trict can  act  in  harmony,  and  estabhsh  a  high  school,  or  other- 


SUPERINTENDENT    OF    COMMON   SCHOOLS.  53 

wise  elevate  the  character  of  the  common  school,  it  would  un- 
doubtedly be  useful  to  the  cause  of  education ;  but  if  this  unity 
of  sentiment  cannot  be  produced,  they  cannot  have,  under  the 
law,  any  other  than  a  common  school. 

By  the  law  it  is  made  the  duty  of  the  commissioners  to  divide 
their  town  into  a  convenient  number  of  districts;  they  have  the 
best  means  of  judging  in  this  matter  from  their  local  knowledge, 
and  unless  it  appears  that  they  have  acted  partially,  or  from 
some  improper  motives,  great  weight  must  be  given  to  their  de- 
cisions. In  this  case,  district  No.  6,  with  36  scholars,  might 
seem  to  have  the  greatest  reason  to  complain  of  the  division.  If 
its  inhabitants  are  willing  to  erect  a  school-house  at  their  own 
expense,  (which  they  must  do,  as  the  appraisement  of  the  old 
house,  if  of  any  value,  can  only  be  made  at  the  time  of  the  di- 
vision,) and  support  a  school,  the  inhabitants  of  No.  8,  with  55 
scholars,  cannot  be  considered  the  aggrieved  party.  The  appeal 
is  dismissed. 

The  Inspectors  of  Common  Schools  of  the  town  of 
Cobleskill,  ex  parte. 

Three  inspectors  must  »ign  a  certificate  of  qualification  for  a  teacher,  in  order  to 
give  it  validity. 

This  was  an  application  from  the  inspectors  of  common  schools 
of  the  town  of  Cobleskill,  for  the  opinion  of  the  Superintendent 
as  to  the  validity  of  a  certificate  of  qualification  for  a  teacher 
signed  by  two  inspectors,  a  third,  who  was  present  at  the  exa- 
mination of  the  teacher,  having  dechned  signing  the  certificate. 

By  A.  C.  Flagg,  September  15,  1829.  Section  45  of  the 
school  act  says,  "it  shall  be  the  duty  of  the  inspectors  of  com- 
mon schools,  or  any  three  of  them,  at  a  meeting  called  for  that 
purpose,"  to  examine  teachers,  &c. ;  and  sec.  47  says  if  the  in- 
spectors shall  be  satisfied  they  shall  give  a  certificate,  &c.  Again, 
sec.  48  says  "  the  inspectors,  or  any  three  of  them,  may  annul" 
such  certificate.  It  is  clear  from  these  sections  that  three  inspec- 
tors are  necessary  to  grant,  and  the  same  number  to  annul  a 
oertificate.    The  certificate  ought  to  be  signed  by  three  inspectors. 

The  Trustees  of  school  district  No.  1  in  the  town  of 
'  Ballston,  ex  parte. 

Trustees  of  school  districts  must  render  an  account  of  their  receipts  and  expen- 
ditures, at  the  expiration  of  their  office  :  it  is  their  duty  also  to  give  such  rea- 
sonable explanations  as  may  be  required. 

This  was  an  appUcation  by  the  trustees  of  school  district  No. 
1  in  the  town  of  BaUston,  for  the  direction  of  the  Superintendent 


54  CASES    DECIDED   BY   THE 

as  to  the  manner  of  accounting  to  the  district  at  the  expiration 
of  their  office. 

By  A.  C.  Flagg,  October  15,  1829.  The  trustees,  on  the 
expiration  of  their  office,  are  to  render  a  just  and  true  account 
in  writing  of  the  receipts  and  expenditures  by  them,  see  sec.  98 
of  school  act.  They  ought  also  to  give  any  reasonable  expla- 
nations to  the  meeting  in  relation  to  their  expenditures. 

Isaac  Sherman,  Collector  of  school  district  No.  4  in 
the  town  of  Spencer,  against  the  Trustees  of  said 
district. 

Collectors  are  entitled  to  5  per  cent,  on  all  sums  actually  collected  and  paid  over 

by  thera ;  but  not  on  sums  paid  to  teachers  for  tuition. 
Trustees  are  not  authorized  to  receive  moneys  for  taxes,  or  on  rate-bills;  but 

payments  may  be  made  to  teachers  for  their  wages,  and  on  sums  so  paid,  the 
.    collector  loses  his  fees. 

This  was  a  case  submitted  by  the  parties  for  the  decision  of 
the  Superintendent;  the  trustees  of  district  No.  4  in  the  town  of 
Spencer  having  received  part  of  a  tax  from  the  persons  on  whom 
it  had  been  assessed,  and  left  the  remainder  to  be  collected  by 
the  collector,  who  claimed  his  fees  on  the  amount  so  received  by 
the  trustees. 

By  A.  0.  Flagg,  October  15,  1829.  When  a  tax  is  assessed 
for  a  school-house,  the  collector  is  entitled  to  5  per  cent,  on  the 
whole  amount.  In  making  out  the  tax-list  the  trustees  are  re 
quired,  sec.  75,  sub.  4,  to  annex  to  it  a  warrant  "for  the  collec- 
tion of  the  sums  in  such  list  mentioned,  with  5  cents  on  each 
dollar  thereof,  for  his  (the  collector's)  fees."  On  every  dollar 
which  is  collected  and  paid  over  by  him,  the  collector  is  entitled 
to  his  fees,  (sec.  104.)  If  he  is  so  unfortunate  as  not  to  collect 
the  entire  tax,  he  loses  his  fees  on  the  amount  not  collected.  It 
would  be  manifestly  unfair  to  allow  the  trustees  to  collect  from 
all  who  pay  promptly,  and  leave  to  the  collector  his  5  per  cent, 
only  on  the  debts  due  from  the  others.  Besides,  who  is  entitled 
to  the  five  per  cent,  if  the  collector  is  not  ?  It  must  be  put  in  the 
tax-list,  and  it  is  to  be  considered  as  the  fair  perquisite  of  the  col- 
lector for  his  trouble  and  responsibility. 

The  law  is  silent  as  to  the  payment  of  taxes  to  trustees,  but 
authorizes  payments  to  teachers  for  their  wages,  sec.  75,  sub.  8. 
When  those  payments  for  wages  are  voluntarily  made  to  the 
teacher  by  the  patrons  of  the  school,  the  persons  thus  paying 
save  the  5  per  cent,  for  collector's  fees,  as  the  law  recognizes 
such  payments,  and  authorizes  the  trustees  to  make  out  a  war- 
rant against  such  only  as  are  liable  for  the  residue  of  the  teach- 
er's wages.  If  any  part  of  the  rate-bill  is  not  collected,  the  col- 
lector loses  his  fees  on  the  amoimt  unpaid ;  the  104th  section 
limiting  his  fees  to  the  amount  "  collected  and  paid  ovct  by  him." 


SUPERINTENDENT    OP    COMMON   SCHOOLS.  55 

The  Commissioners  of  Common  Schools  of  the  town 
of  Lawrence  against  the  Commissioners  of  Com- 
mon Schools  of  the  town  of  Hopkinton. 

If  a  town  is  divided,  and  a  new  town  erected,  the  latter  is  entitled  to  an  equi- 
table share  of  the  school  moneys  apportioned  to  the  former,  unless  the  law 
shall  have  otherwise  provided  in  the  particular  case. 

On  the  21st  day  of  April,  1828,  an  act  was  passed  dividing 
the  town  of  Hopkinton,  and  erecting  the  town  of  Lawrence,  by 
setting  off  a  portion  of  the  former  town.  In  the  ensuing  spring, 
the  commissioners  of  common  schools  of  the  town  of  Hopkinton 
received  the  whole  amount  of  school  moneys  apportioned  to  that 
town,  and,  upon  the  alleged  ground  that  the  agent  of  the  peti- 
tioners for  the  new  town  had  stipulated  that  it  should,  if  erected, 
relinquish  its  claim  to  any  portion  of  those  moneys,  the  commis- 
sioners proceeded  to  distribute  the  whole  amount  so  received 
among  the  districts  in  the  town  of  Hopkinton,  excluding  from  a 
participation  in  the^ distribution  all  the  districts  comprised  within 
the  territory  set  off  to  form  the  town  of  Lawrence,  From  this 
proceeding  the  commissioners  of  the  latter  town  appealed. 

By  A.  C.  Flagg,  November  25,  1829.  The  districts  withia 
the  town  of  Lawrence  should  have  been  included  by  the  com- 
missioners of  Hopkinton  in  the  distribution  of  the  school  moneys 
made  by  them.  Whatever  the  petitioners  for  the  new  town,  or 
their  agent,  may  have  stipulated  with  respect  to  a  relinquish- 
ment of  their  portion  of  the  school  moneys,  such  stipulation  has 
no  force  whatever,  the  law  erecting  the  new  town  being  silent 
on  the  subject.  The  inhabitants  of  the  school  districts  in  the 
territory  set  off  have  their  equitable  rights,  which  cannot  be  bar- 
tered away  by  an  agent  to  procure  the  erection  of  a  new  town. 

The  inhabitants  of  school  district  No. in  the 

town  of  Southampton  against  the  Trustees  of  said 
district. 

The  public  money  can  only  be  applied  to  the  benefit  of  such  schools  as  are  es- 
tablished by  trustees  of  school  districts. 

This  was  an  appeal  by  certain  inhabitants  of  school  district 

No. in  the  town  of  Southampton  from  the  decision  of  the 

trustees  of  said  district,  in  refusing  to  allow  any  part  of  the  pub- 
lic moneys  to  a  school  set  up  by  said  inhabitants  without  the 
authority  of  the  trustees.  The  alleged  cause  for  establishing  the 
school  was  that  the  school-house  was  not  sufficiently  capacious 
for  the  accommodation  of  all  the  children  residing  in  the  districj- 

By  A.  C.  Flagg,  December  14,  1829.  The  pubHc  money 
can  only  be  apportioned  and  paid  to  such  schools  as  are  establish- 


56  CASES    DECIDED    BY   THE 

ed  by  the  tnistees,  and  are  under  their  direction.  If  the  district 
school-house  is  too  small,  then  the  inhabitants  by  a  vote  must 
tax  themselves  to  enlarge  it,  or  to  hire  additional  rooms,  so  eis  to 
accommodate  all  who  wish  to  attend  the  district  school.  When 
this  is  done,  the  trustees  are  bound  to  furnish  tuition  for  all  at 
the  same  rate,  and  to  give  all  an  equal  share  of  the  school  mo- 
ney. But  it  must  be  managed  by  the  trustees  of  the  district, 
and  be  in  effect  one  school.  If  a  portion  of  the  inhabitants  of 
the  district  set  up  an  independent  school,  the  statute  does  not  al- 
low them  any  share  of  the  fund.  The  control  of  the  trustees 
over  all  the  schools  in  the  district  must  be  maintained,  or  all 
system  and  subordination  would  be  at  an  end. 

The  Trustees  of  school  district  No.  19  in  the  town 
of  Pompey,  ex  parte. 

Indigent  persons  may  be  exempted  from  the  payment  of  school  bills,  whether 
there  is  public  money  to  be  applied  to  the  term  or  not. 

The  trustees  of  school  district  No.  19  in  the  town  of  Pompey, 
at  the  close  of  a  term  of  instruction,  exempted  several  of  the  in- 
habitants of  the  district,  on  account  of  their  indigent  circum- 
stances, from  the  payment  of  the  teacher's  wages.  The  public 
money  having  been  expended,  there  was  none  remaining  on 
hand  to  be  apphed  to  the  term  referred  to.  Objections  having 
been  made  to  the  authority  of  the  trustees  to  make  exemptions  in 
such  cases,  application  was  meide  to  the  Superintendent  for  his 
advice  and  direction. 

By  A.  C.  Flagg,  December  18,  1829.  You  can  "exempt 
from  the  payment  of  teachers'  wages  such  indigent  persons 
within  the  district  as  you  may  think  proper,"  and  this  whether 
you  have  public  money  in  your  hands  to  pay  or  not. 

The  intention  of  this  provision  of  the  law  is,  that  children 
whose  parents  are  unable  to  pay  for  their  schooling  shall  be  fur- 
nished with  the  means  of  a  common  school  education,  and  if 
the  persons  are  proper  subjects  of  exemption,  the  fact  that  there 
is  no  public  money  to  lighten  the  exaction  upon  them,  rather  in- 
creases than  lessens  the  obligation  to  exempt  them.  If  they 
could  not  pay  the  balance  when  half  could  Ise  discharged  by  the 
public  money,  then  they  certainly  could  liot  pay  the  whole 
school  bill  where  there  is  no  relief  from  that  source. 


SUPERIMTENDENT   OP   COMMON   SCHOOLS.  57 

Dean  W.  Tyler,  one  of  the  Commissioners  of  Com- 
mon Schools  of  the  town  of  Mount-Morris,  against 
his  associates  in  office. 

Appeals  must  be  made  by  persons  aggrieved. 

This  was  an  appeal  by  one  of  the  commissioners  of  common 
schools  of  the  town  of  Mount-Morris  from  the  decision  of  his 
associate  commissioners,  with  whom  he  differed  in  opinion  with 
respect  to  a  question  submitted  to  them  by  one  of  the  school  dis- 
tricts within  their  jurisdiction. 

By  A.  C.  Flagg,  December  26,  1829.  It  appears  by  the 
statement  of  facts  submitted  in  this  case,  that  the  appellant  was 
one  of  three  commissioners  of  comnion  schools  who  were  called 
upon  to  decide  a  question  in  regard  to  the  school-house  in  dis- 
trict No.  6,  and  that  he  differed  in  opinion  with  the  other  two 
commissioners  as  to  the  decision  made,  and  that  he  now  appeals 
from  the  decision  of  his  colleagues.  It  does  not  appear  that  he 
is  an  inhabitant  of  district  No.  6,  or  that  he  is  affected  by  the 
decision  made.  The  appeal  must  be  made  by  a  person  aggriev- 
ed, before  the  Superintendent  can  take  cognizance  of  it,  and  a 
mere  difference  of  opinion  among  the  commissioners  is  not  a 
ground  of  grievance  to  any  one  of  them. 

(anonymous.) 

A  school  month  is  twenty-six  days,  exclusive  of  Sundays. 
A  quarter  of  a  year  is  ninety-one  days.* 

By  A.  C.  Flagg,  January  20,  1830.  The  Revised  Sta- 
tutes, (vol.  1,  p.  606,)  provide,  that  whenever  the  term  month 
is  used  in  any  contract,  it  shall  mean  a  calendar  and  not  a  lunar 
month;  and  that  ninety-one  days  shall  be  considered  a  quarter 
of  a  year.  Twenty  six  days  will,  therefore,  constitute  a  school 
month,  being  the  average  number  of  working  days,  after  de- 
ducting Sundays.  If  the  school  is  dismissed  on  the  afternoon  of 
Saturday,  the  teacher  is  not  required  to  make  up  the  time  after 
the  expiration  of  his  month ;  and  if  he  keeps  the  whole  day,  he 
does  not  gain  time  thereby,  but  must  continue  his  school  until 
the  month  is  fully  ended. 

•  See  decision  of  Feb.  11,  1833,  by  John  A.  Dix,  for  the  number  of  days 
to  be  taught  in  a  quarter. 


58  CASES   DECIDED   BY   THE 

The  Commissioners  of  Common  Schools  of  the  town 
of  Potsdam,  ex  parte. 

Children  attending  an  academy  are  to  be  numbered  in  the  reports  of  the  trustees 
of  school  districts,  if  their  parents  reside  in  the  district  in  which  the  acadipmy 
is  situated;  but  not  otherwise. 

Tliis  was  an  application  to  the  Superintendent  of  Common 
Schools  for  his  direction  in  the  following  case.  The  St.  Law- 
rence academy  was  included  within  the  limits  of  one  of  the 
school  districts  in  the  town  of  Potsdam,  and  among  the  children 
attending  it  were  several,  whose  parents  resided  in  the  district,  and 
others,  whose  parents  were  non-residents  of  the  district,  but  who 
were  boarded  within  it  for  the  sole  purpose  of  attending  the  acade- 
my. The  question  submitted  was  whether  either  or  both  of 
these  classes  of  children  should  be  enumerated  and  included  by 
the  trustees  of  the  school  district  in  their  annual  report. 

By  A.  C.  Flagg,  Januavy  22,  1830.  Section  92,  sub.  4, 
makes  it  the  duty  of  trustees,  to  include  in  their  annual  report, 
"the  number  of  children  residing  in  the  district  on  the  last  day 
of  December."  Children  attending  an  academy,  whose  parents 
reside  in  the  district,  are  to  be  included  in  the  district  report. — 
Scholars  boarding  in  the  district  and  attending  the  academy, 
whose  parents  or  guardians  reside  out  of  the  district,  are  not  to 
be  enumerated  in  the  report  of  the  trustees  of  the  district.  The 
residence  of  the  parent  is  the  residence  of  the  child;  and  board- 
ing the  child  in  another  district  to  get  an  education,  does  not 
change  its  residence. 

The  Trustees  of  school  district  No.  2  in  the  town  of 
Concord,  against  A.  B.  an  inhabitant  of  said  dis- 
trict. 

A  taxable  inhabitant  of  a  school  district  may  send  to  school  any  child  actually 
living  with  him. 

This  was  a  case  submitted  for  the  decision  of  the  Superinten- 
dent upon  a  statement  of  facts  agreed  to  by  the  parties.  A.  B. 
a  taxable  inhabitant  of  school  district  No.  2  in  the  town  of  Con- 
cord, had  residing  with  him  a  boy,  whose  father  resided  in  anoth- 
er district.  The  boy  was  not  boarded  with  A.  B.  but  was  treated 
in  all  respects  as  one  of  his  own  family,  and  worked  on  his  farm 
like  his  own  children.  The  trustees,  deeming  the  boy  a  tempo- 
raiy  resident  of  the  district^  resolved  to  exclude  him  from  the 
school;  but  by  agreement,  the  case  was  referred  to  the  Superin- 
tendent for  his  decision. 

By  A.  C.  Flagg,  January  27,  1830.  The  public  money 
is  to  be  apportioned  among  the  children  residing  in  the  district. 


¥. 


SUPERINTENDENT    OP   COMMON   SCHOOLS.  59 

A  person  who  pays  taxes  and  is  a  resident  of  your  district,  ought 
to  be  allowed  to  send  to  school  any  children  actually  living  w^ith 
him  as  members  of  his  family. 

The  Trustees  of  school  district  No.  1  in  the  town  of 
Milton,  against  John  Kelly. 

The  Superintendent  of  Common  Schools  will  not  take  cognizance  of  controver- 
sies in  school  districts,  in  respect  to  which  the  parties  have  commenced  liti- 
gation in  the  courts. 

This  was  an  appeal  to  the  Superintendent  for  his  interposition 
in  a  case,  in  which  a  suit  had  been  brought,  and  was  then 
pending,  before  one  of  the  justices  of  the  peace  of  the  town,  in 
which  the  controversy  arose. 

By  A,  C.  Flagg,  January  27,  1830.  The  Superintendent 
has  no  control  over  the  proceedings  of  justices  of  the  peace.  If 
the  trustees  or  inhabitants  of  a  district  commence  litigation  in 
the  courts,  in  relation  to  school  affairs,  they  must  follow  the  or- 
dinary channel  of  the  courts,  as  prescribed  for  all  other  cases. 

The  Trustees  of  school  district  No.  8  in  the  town  of 
Hounsfield,  against  the  Commissioners  of  Com- 
mon Schools  of  said  town. 

If  trustees  consent  verbally  to  an  alteration  in  their  school  district,  the  proceed- 
ings will  not  be  set  aside  for  want  of  a  written  assent. 

In  this  case,  the  commissioners  of  common  schools  in  the 
town  of  Hounsfield,  divided  school  district  Na  8  in  said  town 
and  formed  a  new  district  The  trustees  of  school  district  No.  8 
were  present,  and  made  no  objection  to  the  alteration.  An  ap- 
peal was  afterwards  presented  to  the  Superintendent  upon  the 
sole  ground  that  the  commissioners  should  have  procured  the 
written  consent  of  the  trustees  before  making  the  alteration. 

By  A.  C.  Flagg,  January  30,  1830.  The  verbal  consent 
of  trustees  to  an  alteration  of  their  school  district  is  suflBcient. — 
If  they  are  present  when  the  commissioners  make  the  alteration 
and  do  not  object,  they  must  be  considered  as  consenting  to  it, 
and  the  proceedings  will  not  be  disturbed. 

The  Inspectors  of  common  schools  of  the  town  of 
Monroe,  ex  parte, 

A  teacher  should  not  be  questioned  by  the  inspectors  as  to  his  religious  opinions: 
but  a  person  who  openly  derides  all  religion  should  not  be  employed  as  a 
teacher. 

This  was  an  application  to  the  Superintendent  from  the  in- 
epcGtors  of  common  schools,  of  the  town  of  Monroe,  for  instruc- 


IT 


60  CASES   DECIDED   BY    THE 

tiona  as  to  their  right  to  question  a  teacher  with  respect  to  his 
religious  opinions,  in  order  to  determine  whether  his  moral  cha- 
racter was  such  as  to  entitle  him  to  a  certificate  of  qualification. 
By  A.  C.  Flagg,  February  1,  1830.  In  relation  to  the 
moral  character  of  the  teacher,  much  is  left  to  the  discretion  of  th« 
inspectors.  They  must  be  satisfied  that  it  is  good,  because  they 
have  to  certify  to  its  correctness.  On  this  point  what  would  be 
satisfactory  to  one  man  might  be  unsatisfactory  to  another. — 
Every  person  has  a  right  to  the  enjoyment  of  his  own  religious 
belief  without  molestation:  and  the  inspectors  should  content 
themsdves  with  inquiries  as  to  the  moral  character  of  the  teacher; 
leaving  him  to  the  same  liberal  enjoyment  of  his  religious  belief 
that  they  ask  for  themselves. 

If  a  person  openly  derides  all  religion,  he  ought  not  to  be  a 
teacher  of  youth.  The  employment  of  such  a  person  would  be 
considered  a  grievance  by  a  great  portion  of  the  inhabitants  of 
all  the  districts. 

The  Trustees  of  school  district  No. in  the  town 

of  Winfield,  ex  parte. 

A  tax  voted  to  repair  a  school-house  should  not  be  collected,  if  the  district  has 
no  title  to  the  site,  and  the  owner  has  forbidden  the  repairs  to  be  made. 

This  was  aa  application  for  the  direction  of  the  Superinten- 
dent in  a  case  in  which  a  school-house  had  been  erected,  by 
the  sufferance  of  the  owner,  on  land  to  which  the  district  had 
no  title :  the  land,  after  passing  through  the  hands  of  a  number 
of  persons,  came  into  possession  of  a  purchaser,  who  was  desir- 
ous of  appropriating  the  site  of  the  school-house  to  his  own  use. 
The  house  having  become  dilapidated,  the  owner  of  the  land  for- 
bade any  repairs  to  be  made  on  it  so  as  to  render  it  habitable  for 
common  school  purposes.  A  tax  had  been  previously  voted,  and 
the  question  submitted  was  whether  it  should  be  collected  and  ex- 
j>ended  as  had  been  intended. 

By  A.  C.  Flagg,  February  16,  1830.  It  appears  that  your 
district  built  a  school-house  by  consent  of  the  owner  on  land  for 
which  no^title  was  obtained;  that  this  land  has  passed  into  other 
hands,  and  that  the  present  owner  forbids  the  district  the  use 
and  occupancy  of  the  house,  or  at  least  forbids  their  repairing  it 
for  use.  There  is  no  redress  in  this  case.  The  district  is  in  the 
situation  of  a  person  who  builds  his  house  on  land  which  does 
not  belong  to  him. 

The  tax  voted  to  repair  the  house  should  not  be  collected,  as 
it  cannot  be  safely  expended  for  the  purpose. 


SUPERINTENDENT   dP  iddiiit&llt  SCHOOLS.  61 

The  Trustees  of  school  district  No. in  the  town 

of  Winfield,  ex  parte. 

A  school-house  may  be  kept  in  repair  by  tax,  if  the  district. has  a  lease  of  the 
land  on  which  it  stands. 

This  was  an  application  for  the  opinion  of  the  Superintendent 
with  regard  to  the  propriety  of  expending  money  for  repairing 
a  school-house,  in  a  case  where  the  district  had  obtained  from 
the  owner  of  the  land,  on  which  it  stood,  a  lease  of  the  site  for 
so  long  a  time  as  the  house  should  be  used  for  common  school 
purposes. 

By  A.  C.  Flagg,  March  6,  1830.  Where  the  district  has  a 
lease  from  the  owner  of  the  land  on  which  the  school-house 
stands,  to  use  it  as  long  as  the  district  may  require  it  for  a  school- 
house,  a  tax  to  repair  it  is  legal  and  proper.  It  is  in  all  cases 
desirable  that  the  fee  of  the  land  should  be  vested  in  the  trustees, 
but  this  does  not  affect  the  question  of  collecting  the  tax,  for  this 
may  be  done  even  to  pay  the  rent  of  a  school  room. 

The  Trustees  of  school  district  No.  3  in  the  town  of 
Redhook,  ex  parte. 

If  a  teacher  cannot  procure  a  certificate  of  qualification  from  the  inspectors^  his 
wages  may  be  collected  of  those  who  send  children  to  school,  and  fuel  may 
be  provided  by  tax,  if  a  tax  is  voted  for  the  purpose. 

This  was  an  application  for  the  direction  of  the  Superinten- 
dent in  a  case,  in  which  the  inspectors,  after  examining  the 
teacher,  had  refused  to  give  him  a  certificate  of  qualification.  In 
consequence  of  such  refusal,  some  of  the  inhabitants  of  the  district 
denied  the  right  of  the  trustees  to  collect  his  wages,  and  the  right 
of  the  district  to  vote  a  tax  to  provide  the  school  with  fuel. 

By  A.  C.  Flagg,  March  17,  1830.  Whether  the  teacher 
has  a  certificate  or  not,  there  can  be  no  doubt  of  the  right  to 
collect  a  tax  for  fiiel,  when  voted  by  the  district.  The  trustees 
cannot  pay  the  public  money  to  a  teacher  who  is  not  legally 
qualified,  but  they  can  collect  his  wages  of  those  who  send  to 
school,  by  warrant,  and  the  fuel  can  be  provided  by  a  tax  upon 
property,  if  voted  to  be  so  furnished  by  the  district. 

(anonymous.) 

Land  occupied  by  a  minister  of  the  gospel,  as  tenant,  cannot  be  taxed  unless  its 
value  exceeds  |Jl,500. 

By  A.  C.  Flagg,  April  10,  1830.  By  the  Revised  Statutes 
relative  to  the  assessment  and  collection  of  taxes,  a  minister  of 
the  gospel  is  entitled  to  exemption  from  all  taxes  for  real  estate 
to  the  amount  of  $1,500,  "when  occupied  by  him."    The  mi- 


62  CASES    DECIDED   BY    THE 

nister  being  a  tenant  on  Mr.  Remer's  land^  it  could  not  be  as- 
sessed to  Mr.  R.,  and  therefore  is  exempt  under  the  statute  for 
the  assessment  and  collectioi*  of  taxes. 

(anonymous.) 

If  a  district  directs  the  public  moneys  to  be  divided,  the  vote  should  be  passed 
during  the  year  in  which  the  moneys  are  to  be  applied. 

By  A.  C.  Flagg,  April  19,  1830.  It  is  made  the  duty  of 
the  trustees,  by  sec.  75,  sub.  9,  to  divide  the  pubhc  moneys  into 
not  exceeding  four  parts,  "  whenever  authorized  by  a  vote  of 
their  district,"  and  to  apply  one  portion  to  each  term,^  during 
which  a  school  shall  be  kept.  Tlie  vote  as  to  the  manner  of 
applying  the  money,  should  be  passed  during  the  year  in  which 
it  is  to  be  expended.  The  trustees  are  annually  elected,  and  this 
vote  must  be  considered  as  an  instruction  to  each  set  of  trustees 
by  the  district  meeting.  If  no  vote  is  passed,  then  the  manner 
of  applying  the  public  money  is  left  to  the  discretion  of  the 
trustees. 

The  Trustees  of  school  district  No. in  the  town 

of  Colesville,  ex  parte. 

Trustees  have  the  exclusive  right  of  employing  teachers. 

At  the  annual  meeting  in  school  district  No. in  the  town 

of  Colesville,  a  vote  was  passed  directing  the  trustees  to  employ 
a  female  teacher.  The  trustees  disregarded  the  direction,  and 
engaged  a  male  teacher;  and  the  opinion  of  the  Superintendent 
was  solicited  as  to  the  propriety  of  the  proceeding. 

By  A.  C.  Flagg,  April  26,  1830.  The  trustees  are  empow- 
ered by  the  statute  to  employ  all  teachers  for  the  district.  They 
should  employ  qualified  teachers;  for  to  such  only  can  they  pay 
any  part  of  the  public  money.  If  in  doing  this,  they  can  con- 
form to  the  wishes  of  the  district,  they  ought  to  do  so ;  but  if 
the  district  votes  to  employ  an  incompetent  teacher,  the  trustees 
should  not  regard  the  vote.  The  inhabitants  of  the  district 
designate  the  persons  who  shah  be  trustees;  and  the  persons  thus 
designated  are  invested  by  the  law  with  certain  powers,  for  the 
faithful  and  conscientious  discharge  of  which  they  alone  are  re- 
sponsible, and  with  which  the  district  cannot  properly  interfere. 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  63 

The  Commissioners  of  Common  Schools  of  the  town 
of  Farmington  against  the  trustees  and  inhabitants 
of  school  district  No.  11  in  said  town. 

The  vote  of  a  district  meeting  declaring  the  district  dissolved  haa  no  binding 

force. 

This  was  an  application  to  the  Superintendent  for  his  decision 
on  a  statement  of  facts  agreed  to  by  the  parties,  in  which  the 
right  of  a  district  to  interfere  with  its  own  organization  by  a 
vote  of  the  inhabitants  was  asserted  on  the  one  hand  and  denied 
on  the  other. 

By  A.  C.  Flagg,  April  27,  1830.  The  proceedings  of  a  dis- 
trict meeting,  declaring  the  district  dissolved,  has  no  binding  force 
whatever.  The  commissioners  can  alter,  modify,  and  even  an- 
nul a  district;  but  in  doing  this,  they  must  attach  the  inhabi- 
tants thereof  to  some  other  district.  A  district  meeting  has  no 
power  over  thiS  matter. 

The  Trustees  of  school  district  No.  5  in  the  town  of 
Jamestown,  ex  parte. 

If  a  warrant  to  collect  a  tax  is  made  out  under  the  seal  of  the  trustees,  as  requir- 
ed by  law,  the  renewal  may  be  without  a  seal. 

District  No.  5  in  the  town  of  Jamestown  having  been  duly 
formed,  a  tax  was  voted  to  build  a  school-house,  the  tax-list  was 
made  out,  and  a  warrant,  under  the  hands  and  seals  of  the 
trustees,  was  duly  issued  and  delivered  to  the  collector.  A  few 
individuals  having  neglected  to  pay  their  proportion  of  the  tax, 
the  trustees  renewed  the  warrant  as  to  the  delinquents,  but  did 
not  affix  their  seal  to  the  renewal.  The  warrant  was  delivered 
to  the  collector,  who  levifed  on  the  property  of  the  delinquents 
and  sold  it.  The  question  submitted  was,  whether  the  renewal 
of  the  warrant  was  valid. 

By  A.  C.  Flagg,  June  2,  1830.  A  warrant  was  made  out 
under  seal,  and  in  relation  to  certain  delinquents  was  renewed 
by  the  trustees :  The  delinquents  contested  the  validity  of  the 
renewal,  because  it  was  not  also  under  seal.  It  is  conceded  that 
the  warrant  is  valid  in  all  respects ;  and  it  would  seem  that  those 
who  have  been  favored  with  an  extension  of  the  time  for  paying 
their  tax  beyond  the  ordinary  hfe  of  the  warrant,  are  the  last 
persons  who  ought  to  call  in  question  the  form  in  which  this  in- 
dulgence to  them  is  granted.  The  original  warrant  is  just  as 
good  evidence  of  the  indebtedness  of  the  person,  and  the  equity 
of  the  assessment,  after  thirty  days,  as  before.  The  warrant  re- 
quires the  collector  to  levy  and  make  return  within  thirty  days, 
and  the  renewal  is,  in  its  operation,  merely  giving  the  collector 


64  CASES    DECIDED   BY   THE 

thirty  days  longer  to  make  his  return  in  respect  to  certain  delin- 
quents, and  gives  such  delinquents  thirty  days  longer  to  make 
payment.  The  renewal  does  not  recapitulate  any  part  of  the 
warrant,  but  is  made  upon  the  supposition  that  the  warrant  is 
perfect.  If  it  is  not  to  be  viewed  in  this  light,  it  would  seem 
that  the  renewal  should  state  the  material  parts  of  the  warrant, 
as  well  as  to  have  the  seal  affixed.  The  proceeding  on  district 
warrants  is  the  same  as  on  justices'  executions,  and  in  the  case 
of  executions,  2d  R.  S.  p.  251,  sec.  145,  it  is  provided  that  "if 
any  execution  be  not  satisfied,  it  may  from  time  to  time  be  re- 
newed by  the  justice  issuing  the  same,  by  an  endorsement  there- 
on to  that  effect,  signed  by  him  and  dated  when  the  same  shall 
have  been  made."  A  similar  endorsement  embracing  the  names 
of  the  delinquents,  is  a  valid  and  gufficient  renewal  of  a  warrant 
issued  by  the  trustees  of  a  school  district.  Trustees  cannot  issue 
or  renew  a  warrant  after  their  successors  are  chosen.  The  new 
trustees,  on  being  satisfied  by  their  predecessors  thlit  certain  sums 
are  due,  should  sign  or  renew  a  warrant  in  order  to  give  it  ef- 
fect, but  in  doing  this  they  do  not  incur  any  individual  liability. 

(anonymous.) 

Public  money  cannot  be  paid  to  a  district  unless  a  school  has  been  kept  therein 
three  months  by  a  qualified  teacher,  and  unless  all  moneys  received  the  pre- 
vious year  have  been  paid  to  him. 

By  A.  C.  Flagg,  July  16,  1830.  The  commissioners  of 
common  schools  are  expressly  prohibited  from  paying  the  public 
money  to  any  district,  unless  there  is  a  report  showing  that  the 
district  has  had  a  duly  qualified  teacher  for  three  months  at  least, 
and  that  all  moneys  received  from  the  commissioners  for  that 
year  have  been  applied  to  the  payment  of  the  compensation  of 
such  teacher,  sec.  24. 

The  leading  design  of  the  school^system  is  io  promote  the  em- 
ployment of  qualified  teachers. 

The  Trustees  of  school  district  No.  13  in  the  town 
of  Castile,  ex  parte. 

A  person  set  off  without  his  consent  from  a  school  district,  cannot  be  taxed  for 
a  school-house,  if  within  four  years  he  has  paid  a  tax  for  that  purpose  in  the 
district  from  which  he  was  thus  set  off. 

If  a  part  of  the  value  of  the  property  of  an  old  district  is  awarded  to  a  new  dis- 
trict on  account  of  a  person  not  liable  to  be  taxed  in  the  latter  for  a  school- 
house,  the  amount  is  to  be  allowed  to  the  credit  of  all  the  inhabitants. 

This  was  a  case  in  whicli  a  new  district  was  formed,  and  a 
part  of  the  value  of  the  school-house  belonging  to  the  district 
from  which  it  was  taken,  was  apportioned  to  the  former  on  ac- 


SUPERINTENDENT    OF   COMMON    SCHOOLS.  65 

count  of  the  taxable  property  of  a  person  who  had  paid  a  tax  in 
the  old  district  within  four  years,  and  who  was  set  off  to  the  new 
district  without  his  consent.  The  questions  submitted  were, 
whether  he  could  be  taxed  in  the  new  district  for  a  school-house, 
and  if  not,  to  whose  credit  the  sum  received  from  the  old  district 
on  account  of  his  taxable  property,  should  be  applied. 

By  A.  C.  Flagg,  July  26,  1830.  The  81st  section  exempts 
"every  taxable  inhabitant  of  a  district  who  has  been  within  four 
years  set  off  from  any  other  district,"  without  his  consent,  if  he 
has  paid  a  tax  within  that  time  for  building  a  school-house.  It 
is  not  material  whether  he  is  set  off  from  an  old  to  a  new  dis- 
trict, or  whether  from  one  old  district  to  another.  The  person 
to  whom  you  allude,  if  he  has  paid  a  tax  within  four  years  for 
building  a  school-house,  and  if  he  did  not  consent  to  be  set  off, 
is  entitled  to  exemption. 

The  money  which  is  apportioned  on  the  property  of  this  per- 
son from  the  old  district  is  to  be  paid  to  the  trustees  of  the  new 
district,  and  by  them  applied  towards  procuring  a  school-house 
for  their  district.  This,  if  it  is  equal  to  the  new  tax,  is  an  ex- 
emption of  all  those  set  off,  whether  they  consented  or  not ;  for 
it  is  to  be  allowed  to  the  credit  of  the  inhabitants  thus  set  off  in 
payment  of  any  tax  assessed  on  them.  But  an  apportionment 
made  to  one  individual  is  not  to  be  credited  to  another  in  ex- 
tinguishment of  his  tax,  but  is  to  be  paid  towards  the  erection 
of  the  new  house,  as  an  offset  for  the  exemption  which  the  non- 
consenting  individual  clauns.  The  fair,  equitable  import  of  sec. 
69  is,  that  the  money  apportioned  to  each  individual  and  paid  by 
the  old  district,  shall  be  credited  to  tliat  individual.  This  is  the 
only  "credit"  to  which  he  is  entitled.  My  opinion  therefore  is 
that  the  individual,  on  the  facts  assumed,  is  exempt,  and  that 
tlie  money  apportioned  to  him  from  the  old  district  is  to  be  ap- 
plied for  the  benefit  of  the  new  district,  as  an  offset  for  such  ex- 
eiiiption. 

The  Commissioners  of  Common  Schools  of  the  town 
of  Hamilton,  ex  parte. 

Persons  attached  to  a  school  district  without  the  consent  of  the  trustees,  may 
within  three  months  be  set  off  again  without  the  consent  of  such  trustees. 

This  wa^  a  case  in -which  the  commissioners  of  common 
schools  of  the  town  of  Hamilton  set  off  three  persons  from  one 
existing  district  to  another,  without  the  consent  of  the  trustees- 
of  the  district  to  which  they  were  thus  annexed.  Before  the  ex- 
piration of  three  months,  the  commissioners  formed  a  new  dis- 
trict, and  annexed  to  it  the  three  persons  referred  to.  The  ques- 
tion submitted  was,  whether  the  consent  of  the  trustees  of  the 

6 


66  CASES   DECIDED   BY    THE 

district  to  which  they  were  first  set  off  was  necessary,  or  whether 
the  consent  of  the  trustees  of  the  district  from  which  they  were 
originally  taken,  was  sufficient. 

By  A.  C.  Flagg,  August  6,  1830.  If  persons  are  attached 
to  a  district  without  the  consent  of  the  trustees,  and  the  com- 
missioners, before  the  end  of  three  months,  set  them  to  a  new" 
district,  they  only  want  the  consent  of  the  trustees  of  the  dis- 
trict to  which  they  originally  belonged.  The  new  district  has 
'10  trustees  to  consent  for  it ;  and  the  persons  are  not  yet  legally 
incorporated  with  the  district  to  which  they  were  first  transfer- 
red, 
m 

j.The  executors  of  the  estate  of  Thomas  Smith  against 
'^'    the  trustees  of  school  district  No.  21  in  the  town 
of  Brookhaven.        ,   .   .  ''^ 

Persons  about  to  remove  from  a  district  must  be  included  in  a  tax-list,  if  they 

are  actually  inhabitants  of  the  district  when  the  list  is  made  out. 
No  appraisement  of  a  school-house  and  other  property  is  necessary  when  persons 
- '  «re  set  off  from  one  existing  district  to  another. 

This  was  an  appeal  by  the  executors  of  the  estate  of  Thomas 
Smith  deceased,  late  a  taxable  inhabitant  of  school  district  No. 
21  in  the  town  of  Brookhaven,  from  the  proceedings  of  the  trus- 
tees of  said  district,  in  assessing  a  tax  for  building  a  school- 
house.  The  circumstances  under  which  the  appeal  was  brought, 
are  stated  in  the  decision  of  the  Superintendent. 
■'  By  A.  C.  Flagg,  August  9,  1830.  In  the  case  of  the  ap- 
'peal  of  Charlotte  S.  Smith,  executrix,  Wm.  Woodhull  and  Wm. 
Beale,  executors  of  the  estate  of  Thomas  Smith,  deceased,  from 
the  doings  of  the  trustees  of  district  No.  21  in  Brookhaven,  it 
appears  that  Thomas  Smith  in  his  hfe  time  was  transferred 
from  district  No.  20  to  21,  and  that  at  the  time  of  the  transfer 
all  the  trustees  of  the  two  districts  gave  their  consent.  District 
No.  21  having  no  school-house,  a  room  was  hired  for  the  ac- 
commodation of  the  district  school.  In  September,  1829,  Tho- 
mas Smith,  of  whom  the  house  was  hired,  died,  and  the  trus- 
tees had  notice  that  they  could  not  occupy  the  house  after  May 
following.  Accordingly  in  Febniary  the  district  voted  a  tax 
to  build  a  school-house.  In  pursuance  of  this  vote,  a  tax-list  was 
made  out  and  placed  in  the  hands  of  the  collector,  property  be- 
longing to  the  estate  of  Thomas  Smith  deceased,  was  seized 
and  advertised  by  the  collector,  and  two  days  before  the  sale  no- 
tice of  an  appeal  to  the  Superintendent  was  served,  and  the  sale 

has  been  thus  suspended.  • 

^  io'>  »<u 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  67 

1.  The  appellants  allege  that  the  family  of  Thomas  Smith, 
deceased,  were  about  removing  from  the  district  when  the  as- 
sessment was  made,  and  complain  as  a  hardship  that  the  estate 
should  be  required  to  pay  for  privileges  which  none  of  the  family 
can  enjoy. 

2.  That  it  was  the  duty  of  the  trustees  to  have  obtained  from 
the  commissioners  an  appraisement  of  the  school-house  in  No. 
20,  and  to  have  deducted  the  apportionment  belonging  to  the 
Smith  estate  before  the  tax  list  was  made  out. 

In  relation  to  the  first  point,  it  is  to  be  observed  that  sec.  76, 
says  that  the  trustees  shall  apportion  the  tax  among  all  the 
taxable  inhabitants  of  the  district  "  at  the  time  of  making  out 
the  Ust."  If  those  who  are  liable  to  pay  taxes  on  the  estate  of 
Thomas  Smith  deceased,  were  residents  of  district  No.  21  at  the 
time  of  making  out  the  assessment,  then  it  was  imperative  on  the 
trustees  to  place  them  upon  the  list.  As  to  the  hardship  of  pay- 
ing for  a  school-house  from  which  the  family,  in  consequence  of 
their  removal,  will  derive  no  advantage,  it  is  similar  in  character 
to  the  apparent  hardship  to  which  all  those  persons  are  subjected 
who  are  assessed  to  erect  school-houses  when  they  have  no  chil- 
dren to  send  to  school,  and  consequently  receive  no  direct  equi- 
valent for  their  money.  The  law  however  for  supporting  com- 
mon schools  is  based  upon  the  principle  that  all  property  shall 
be  assessed  for  the  support  of  schools,  whether  the  owner  has  chil- 
dren requiring  school  accommodations  or  not.  And  if  the  per- 
sons thus  situated  receive  no  direct  equivalent  for  their  money, 
they  are  nevertheless  interested  in  and  benefitted  by  every  mea- 
sure which  tends  to  ameliorate  the  condition  and  enlighten  the 
minds  of  those  around  them.  Property  is  valueless  unless  the 
owner  is  protected  in  the  quiet  enjoyment  of  it,  and  it  is  better  to 
pay  a  tax  to  give  ipstruction  to  the  rising  generation,  and  thus 
train  them  to  usefulness,  than  to  pay  a  tax  to  punish  them  for 
crimes  from  which  an  education  might  have  protected  them. 
Persons  of  property  have  the  greatest  interest  in  whatever  con- 
cerns the  peace  and  welfare  of  the  community ;  and  they  have 
an  interest  in  supporting  the  common  schools  proportioned  to 
their  property.  If  the  child  of  their  neighbor  becomes  intelligent 
and  grows  up  a  useful  citizen,  he  is  a  safeguard  to  them,  and 
secures  them  in  the'  quiet  possession  of  their  property.  If  he 
grows  up  in  ignorance  and  vice,  and  becomes  a  depredator  upon 
society,  the  man  of  property  is  exposed  in  proportion  to  the  ex- 
tent of  his  possessions,  and  in  addition  to  this  his  property  is 
taxed  for  the  punishment  of  the  depredator.  County  and  town 
taxes  are  paid  with  a  less  gratifying  equivalent  than  that  re- 
ceived for  taxes  paid  for  schools. 


68  -^.luvii  n  CASES   DECIDED    BY   THE  '1119 

•■     The  trustees  in  this  case  could  not  legally  exempt  the  estate 

"irf  Mr.  Smith  from  assessment, 

^    As  to  the  second  point,  it  is  only  necessary  to  say,  that  as  the 

'commissioners  set  the  persons  in  question  from  one  district  t© 
another  district,  no  appraisement  of  the  school-house  was  neces- 
sary. Sec.  67  provides  that  the  school-house  of  the  old  district 
shall  be  estimated  "  when  a  new  district  shall  be  formed  from 
one  or  more  districts  possessed  of  a  school-house."  In  this  case 
no  new  district  was  formed ;  it  was  only  an  alteration  of  the  line 
between  two  old  districts.* 
The  appeal  is  dismissed.      ,  , 

The  Trustees  of  school  dfstHct  No.  4  in  the  town  of 
Mount  Morris,  against  the  inhabitants  of  said  dis- 
,    trict. 

TA  tax  being  voted  to  build  a  school-house,  the  tax  list  made  out  and  a  warrant 
•J.  issued,  the  collection  of  the  tax  can  not  be  suspended  by  vote  of  a  district 
f     meeting. 

-     The  facts  of  this  case  are  stated  in  the  Superintendent's  deci- 
sion. 

By  A,  C.  Flagg,  Aiigust  12,  1830.  In  the  case  of  the  ap- 
peal of  the  trustees  against  the  inhabitants  of  district  No.  4  Mount 
Morris,  it  appears  that  in  the  month  of  March  last,  the  district 
passed  a  vote  to  raise  175  dollars  to  erect  a  school-house,  fixed  a 
site,  and  instructed  the  trustees  to  erect  the  building.  Accord- 
ingly a  contract  was  made  and  the  house  is  now  in  progress. 
On  the  5th  of  June,  at  a  district  meeting,  a  vote  was  passed 
suspending  the  collection  of  the  tax,  or  a  part  of  it,  until  after  the 
expiiation  of  the  term  of  service  of  the  present  trustees.  This  is 
improper:  the  trustees  have  made  contracts  on  the  faith  of  the 
vote  to  raise  a  tax.  The  assessment  is  made  out  and  the  war- 
rant issued.  The  power  given  to  district  meetings,  by  sec.  61, 
sub.  6,  to  alter  and  modify  their  own  proceedings,  does  not  con- 
fer authority  to  interfere  with  a  warrant  which  has  been  issued 
by  the  trustees. 

It  is  decided  that  the  proceedings  of  the  meeting  of  the  5th  of 
June,  1830,  in  district  No.  4  Mount  Morris,  are  void. 

*  This  principle  is  settled  by  the  decision  in  the  case  of  the  trusteea  of  school 
district  No.  17,  in  the  town  of  Hector,  page  35. 


-ilovHvi  lot  hifiq  aaxtJ  jot  L-^vi'-'. 


superintendent  of  common  schools.  69 

(anonymous.) 

Vacant  unimproved  lota  are  not  taxable,  if  the  owner  is  a  non-resident. 
Of  a  lot  of  50  acres,  a  tenant  of  ten  is  regarded  as  the  agent  of  the  non-resident 
owner  for  the  remaining  forty. 

*!By  A.  C.  Flagg,  October  11,  1830.  Vacant  unimproved 
lots,  if  the  owner  is  a  non-resident  of  the  district,  are  not  taxable 
for  school  purposes.  Where  a  lot  of  fifty  acres,  had  a  tenant  on 
ten  acres  of  it,  it  was  decided  that  the  tenant  could  be  assessed 
for  ten  acres;  and  that  he  must  be  so  far  regarded  as  the  agent 
for  the  forty  acres,  as  to  make  the  non-resident  owner  taxable 
therefor,  under  sec.  77. 

(anonymous.) 

Purchases  subsequent  to  the  organization  of  a  school  district  are  not  to  affect 
their  boundaries. 

By  A.  C.  Flagg,  October  18,  1830.  Where  a  person  pur-' 
chased  a  lot  in  an  adjoining  district  along  side  of  his  farm,  it 
was  decided  that  he  was  taxable  for  the  lot  purchased,  in  the 
district  where  it  was  situated.  If  his  farm  had  been  intersected 
by  the  district  line,  when  the  commissioners  formed  it,  then  he 
w^ould  have  been  assessed  for  his  whole  farm,  in  the  district 
where  his  house  was  situated  ;  but  the  lot  purchased  is  a  distinct 
lot,  and  the  lines  of  districts  cannot  be  changed  by  individual 
purchases. 

The  Trustees  of  school  district  No.  12  in  the  town 
of  Sardinia,  against  the  Commissioners  of  Common 
Schools  of  said  town. 

Commissioners  of  common  schools  cannot  interfere  with  the  organization  of  a 
school  district,  while  an  appeal  before  the  Superintendent,  in  respect  to  such 
organization,  is  pending. 

On  the  16th  September,  1829,  the  commissioners  of  common 
schools  of  the  town  of  Sardinia,  formed  school  district  No.  12  in 
said  town,  by  setting  off  a  part  of  No.  1.  From  this  proceeding 
an  appeal  was  brought  to  the  Superintendent,  who,  on  the  22d 
May,  1830,  annexed  to  district  No.  12  a  part  of  district  No.  2, 
and  in  other  respects  confirmed  the  proceedings  of  the  commis- 
sioners. While  this  appeal  was  pending,  the  commissioners 
formed  a  new  district  and  set  off  to  it  the  persons  previously  an- 
nexed to  No.  12.  From  this  proceeding  another  appeal  wag 
brought  by  the  trustees  of  No.  12. 

By  A.  C.  Flagg,  November  25,  1830.  The  decision  of  the 
22d  May  establishes  the  boundaries  of  district  No.  12.  The  com- 
missioners were  wrong  in  interfering  with  this  question  during 


70" 


CASES    DECIDED   BY    THE 


the  pendency  of  the  appeal.  The  whole  design  of  the  law  which 
authorizes  tlie  appeal,  was  that  the  authority  in  relation  to  the 
points  in  controversy,  should  be  taken  from  the  commissioners, 
and  transferred  to  the  superintendent  from  the  time  of  making 
the  appeal.  The  appeal  would  be  a  mockery,  if,  in  the  mean 
time,  the  commissioners  could  go  on  and  make  anew  all  the  altera- 
tions which  were  appealed  from  as  a'grievance.  But  if  the  com^ 
missioners  had  not  erred  in  their  interference  with  a  question 
which  had  been  taken  from  them  by  an  appeal,  still  the  deci- 
sion of  the  22d  of  May  settles  the  boundaries  of  No.  12,  and  that 
decision,  as  to  the  particular  question  submitted,  is  final,  and 
the  commissioners  cannot  alter  those  boundaries  at  a  subsequent 

'■"  •     "'       '■      ■    ■''■"'  [(anonymous.)  ;;r^.i,;  n-.-jJ-.. 

If  an  annual  meeting  is  held  at  the  time  and  place  appointed  at  the  annual  meet- 
ing of  the  preceding  year,  it  is  valid,  although  the  clerk  of  the  district  may 
have  neglected  to  give  the  notice  required  by  law. 

By  A.  C.  Flagct,  October  30,  1830.  At  an  annual  meeting 
the  time  and  place  for  the  next  annual  meeting  are  to  be  fixed  ; 
this  is  notice  to  all  the  district,  and  if  the  inhabitants  meet  ac- 
cording to  the  adjournment,  the  meeting  is  valid,  although  the 
clerk  may  have  neglected  to  put  up  the  notice  required  by  the 
statute. 

The  Trustees  of  school  district  No. in  tlie  town 

j"  of  Lysander,  ex  parte. 

The  public  money  must  be  paid  to  teachers  for  services  rendered  between  the 
January  preceding  and  the  January  following  the  time  of  receiving  it. 

This  was  an  application  to  the  Superintendent  for  his  opinion 
with  regard  to  the  right  of  the  trustees  of  a  school  district  to  pay 
the  public  money  received  in  April  to  a  qualified  teacher  for  giv- 
ing instruction  during  the  summer  of  the  previous  year. 

By  A.  C.  Flagg,  November  10,  1830.  The  school  money 
received  in  April,  should  be  paid  for  the  wages  of  qualified  teach- 
ers between  the  January  preceding  the  time  of  its  receipt,  and  the 
January  following.  This  enables  the  trustees  to  certify  in  their 
annual  report,  dated  in  the  following  January,  that  the  money 
has  been  paid  to  a  qualified  teacher,  "  during  the  year  ending  at 
the  date  of  such  report,"  as  required  by  the  24th  section  of  th« 
school  statute. 

will  lAi         .Mi^,!    ,<5i.' 

-mi>o  ...  ..■    —i  .oVI  Joi I j*iii  to  <»!....... —  .      -  i.- i^- - 


SUPERINTENDENT    OF    COMMON    SCHOOLS. 


7^ 


The  Trustees  of  school  district  No. in  the  town" 

of  Stillwater,  ex  parte. 

A  store  and  lot  must  be  taxed  in  the  district  in  which  they  are  situated;  but 
goods  in  a  store  are  to  be  taxed  in  the  district  in  which  the  owner  resides. 

This  was  an  application  for  the  opinion  of  the  Superintendent 
in  a  case  where  the  owner  of  a  store  was  assessed  to  pay  a  tax 
on  the  goods  contained  in  it,  in  a  district  adjoining  the  one  in 
which  the  store  was  situated,  the  residence  of  the  owner  being 
in  said  adjoining  district.  The  store  and  the  owner's  dwelling 
house  were  separated  by  a  road,  which  was  the  boundary  Hne 
Ijetween  the  two  districts.  The  principle  of  the  Superintendent's 
(pinion  in  the  case  is,  that  the  store  and  lot,  being  real  estate, 
were  taxable  in  the  district  where  they  were  situated,  and  the 
goods  contained  in  the  store,  being  personal  property,  were  tax- 
able in  the  district  in  which  the  owner  resided. 

By  A.  C.  Flagg,  November  19,  1830.  The  owner  of  the 
store  who  is  a  non-resident  is  Uable  to  be  assessed  in  your  district 
for  the  building  and  store  lot ;  for  the  goods  in  the  store  he  is  li- 
able to  be  taxed  in  the  district  where  he  resides,  and  not  else- 
where. 

The  Trustees  of  school  district  No.  2  in  the  town  of 
North  Salem,  ex  parte. 

A  person  coming  into  a  school  district  the  day  before  a  district  meeting,  with 
the  bona  fide  intention  of  residing  there,  is  a  voter. 

This  is  a  case  in  which  the  Superintendent's  opinion  was  so- 
licited with  respect  to  the  right  of  a  person  to  vote  at  a  district 
meeting,  who  had  removed  into  the  district  with  his  family  and 
taken  up  his  residence  in  it  the  day  before  the  meeting  was  held. 

By  A.  C.  Flagg,  November  19,  1830.  Persons  who  have 
recently  moved  into  the  district,  if  they  have  done  it  with  a  bona 
tide  intention  of  taking  up  their  residence  therein,  and  who  have 
the  other  legal  qualifications,  are  entitled  to  vote  at  district  meet- 
ings. A  person  who  has  purchased  a  farm,  or  rented  a  tene- 
ment, and  has  come  into  the  district  to  reside  the  day  before 
a  district  meeting,  has  the  required  residence  to  entitle  him  to 
vote. 

The  Trustees  of  school  district  No  7  in  the  town  of 
Salem,  ex  parte. 

Persons  having  certain  qualifications  may  vote  at  district  meetings. 

This  was  an  application  to  the  Superintendent,  from  the  trus- 
tees of  district  No,  7  in  the  town  of  Salem,  to  decide  what  qua- 


72  CASES    DECIDED    BY   THE 

lifications  were  necessary  to  entitle  a  person  to  vote  at  a  district 
meeting,  a  tax  having  been  laid  in  the  district  to  build  a  school- 
house,  and  a  question  having  arisen  as  to  the  right  of  certain  in- 
habitants to  give  their  votes. 

By  A.  C.  Flagg,  December  7,  1830.  The  qualifications  for 
voting  at  district  meetings,  are : 

1.  Having  a  freehold  in  the  town. 

2.  Having  been  assessed  to  pay  taxes  in  the  town. 

3.  Having  fifty  dollars  liable  to  taxation.  Either  qualification 
is  sufficient  without  the  other. 

The  payment  of  taxes  on  the  highway,  qualifies  a  person  lo 
vote  in  a  district  meeting  under  section  60.  The  old  constitution^ 
section  7,  required  as  one  qualification  for  voting,  that  the  citizen 
should  have  "been  rated  and  actually  paid  taxes  to  this  state;" 
and  the  10th  section  of  the  election  law,  2  R.  L.  of  1813,  p.  253. 
declared  that  payment  of  taxes  on  the  highways  should  be  con- 
sidered as  a  "  payment  of  taxes  to  the  state,"  for  the  purpost; 
contemplated  in  the  constitution.  By  section  60  of  the  school 
statute,  the  person  entitled  to  vote  is  only  required  to  have  paid 
taxes,  or  to  have  been  assessed,  in  the  town  where  he  resides,  to- 
entitle  him  to  vote  in  the  district. 

Personal  property  to  the  amount  of  fifty  dollars  over  and  above 
the  exemptions  on  execution,  if  the  fifty  dollars  is  liable  to  tax- 
ation in  the  district,  makes  the  owner,  if  he  is  a  resident  of  the 
district,  a  voter  therein. 

The  Trustees  of  school  district  No.  3  in  the  town  of 
■^"^  Eaton,  ex  parte.'  *''  '^^^^^  -'  '■ 

In  employing  teachers  trustees  should  so  far  consult  the  feelings  and  wishes  of  the 
inhabitants  as  not  to  give  offence  to  a  large  portion  of  them. 

This  was  a  case  in  which  the  inhabitants  of  school  district 
No.  3  in  the  town  of  Eaton,  had,  at  a  di^rict  meeting,  votetl 
that  a  certain  person  should  be  employed  as  a  teacher  by  the 
trustees.  The  trustees,  in  opposition  to  the  direction  contained 
in  the  vote  referred  to,  employed  another  individual.  In  con- 
sequence of  thus  violating  the  wishes  of  the  inhabitants  great  ex- 
citement was  produced  in  the  district,  and  the  opinion  of  the  Su- 
perintendent was  solicited  with  regard  to  the  legality  of  the  pro- 
ceedings of  the  trustees. 

By  A.  C.  Flagg,  December  16,  1830.  I  have  received  the 
application  of  twenty-five  of  the  inhabitants  of  district  No.  3 
in  the  town  of  Eaton,  in  regard  to  the  employment  of  a  teacher 
by  two  of  the  trustees,  contrary  to  a  vote  of  said  distria  for  ano- 
ther person. 

Two  of  the  trustees  have  a  legal  right  to  employ  a  teacher ; 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  73 

they  ought,  however,  so  far  to  consult  the  wishes  and  feehnga 
of  the  district,  as  not  to  employ  a  person  who  is  offensive  to  a 
large  portion  of  the  inhabitants.  In  this  case  the  trustees  appear 
to  have  a  majority  of  the  district  with  them  ;  they  also  have  the 
law  on  their  side.  With  all  this,  however,  I  would  urge  upon 
them  the  importance  of  conciliation  and  of  preserving  harmony 
in  the  district. 

If  the  opposing  party  have  vahd  objections  to  the  teacher  em- 
ployed, that  would  be  another  matter,  and  they  could  urge  those 
objections  on  an  appeal  to  the  Superintendent. 

The  Trustees  of  school  district  No.  2  in  the  town  of 
Depau,  ex  parte. 

A  minister  of  the  gospel  is  exempt  from  taxation  for  common  school  purposes  in 
the  same  manner  as  for  other  taxes. 

This  was  an  application  to  the  Superintendent  for  his  opinion 
with  regard  to  the  right  of  the  trustees  of  school  district  No.  2  in 
the  town  of  Depau,  to  include  in  the  assessment  of  a  tax  voted 
to  build  a  school-house,  a  minister  of  the  gospel  residing  in  the 
district. 

By  A.  C.  Flagg,  December  30,  1830.  A  minister  of  the 
gospel  is  exempt  from  a  tax  for  school-houses  in  the  same  man- 
ner as  for  other  taxes,  by  the  4th  section  of  the  general  tax  law: 
If  the  minister  is  to  be  included  in  the  district  assessment  roll, 
then  by  the  same  rule  all  the  property  exempted  in  said  4th  sec- 
tion should  also  be  embraced  ;  for  there  is  no  special  exemption 
in  the  school  statute,  of  colleges,  poor-houses,  churches,  and 
United  States  and  state  lands :  And  if  full  effect  were  not  given 
to  the  exemptions  in  the  general  law,  the  school-house  would 
also  be  embraced  in  the  tax-list  of  the  district. 

The  inhabitants  of  school  district  No.  13  in  the  town 
of  Knox,  against  the  Trustees  of  said  district. 

No  real  estate  except  such  as  lies  in  a  school  district  can  be  taxed  in  it  for  com- 
mon school  purposes. 

Non-resident  tenants  cannot  be  taxed  under  section  78  of  the  title  relating  to 
common  schools.     (But  see  note.) 

This  was  an  appeal  by  certain  inhabitants  of  school  district 
No.  13  in  the  town  of  Knox,  from  the  proceedings  of  the  trus- 
tees of  said  district  in  assessing  a  tax.  The  grounds  of  objec- 
tion are  set  forth  in  the  Superintendent's  opinion. 

By  A.  C.  Flagg,  February  25,  1831.  In  district  No.  13 
in  Knox,  it  is  represented  that  the  trustees  omitted  to  include 
in  the  assessment  one  separate  lot  which  is  not  within  the  dis- 
trict, on  the  ground  that  said  lot  was  included  in  the  same 


74  ''v'P<^n*6ASES    DECIDED   BY    THE 

deed  witTi'  the  one  on  which  the  owner  resides.  By  the  same 
rule,  if  a  man  inherited  by  will  one  lot  in  Cayuga  county  and 
another  in  Columbia,  he  must  be  taxed  for  them  both  in  the 
county  where  he  resided,  because  he  derived  title  to  both  of 
them  in  the  same  will.  The  lots  referred  to  in  the  case  in  dis- 
trict 13,  will  he  taxed  in  the  same  manner  as  if  the  title  to  them 
had  been  contained  in  separate  deeds. 

Another  lot  was  embraced  in  the  same  assessment,  which  wa« 
in  the  occupancy  of  a  tenant  who  was  a  non-resident  of  the  dis- 
trict, except  the  house  and  garden,  which  had  been  sub  rented 
to  a  person  residing  in  the  district.  The  78th  section,  making 
non-resident  owners  liable  for  taxes,  does  not  extend  to  non- 
resident tenants.  In  this  case  the  tenant  of  the  house  who  re- 
Bides  in  the  district  can  be  assessed  for  the  value  of  the  part  oc- 
cupied by  him;  but  that  part  cleared  and  cultivated  by  the  origi- 
nal and  non-resident  tenant  is  not  liable  to  be  assessed  to  the 
latter.* 

The  trustees  must  correct  the  assessment  accordingly. 

The  Trustees  of  school  district  No.  1  in  the  town  of 
Oswego,  ex  parte. 

Bridge  companies  are  taxable  in  the  school  districts  where  the  tolls  are  col- 
lected. 

''This  was  an  application  for  the  opinion  of  the  Superintendent 
with  regard  to  the  liability  of  the  Oswego  Bridge  Company  to  be 
taxed  for  common  school  purposes. 

By  A.  C.  Flagg,  March  12,  1831.  The  question  is  sub- 
mitted whether  the  Oswego  Bridge  Company  (a  corporation  with 
the  usual  powers)  is  liable  to  be  assessed  for  school  taxes.  It  is 
provided  by  title  4,  chap.  13,  that  "all  moneyed  or  stock  cor- 
porations shall  be  liable  to  taxation  on  their  capital ;"  and  .sec. 
79,  of  the  statute  relating  to  school  assessments,  says,  "the  valua- 
tion of  taxable  property  shall  be  ascertained  as  far  as  possible 

•  In  the  case  of  Dubois  vs.  Thome  and  others,  8  Wendell,  518,  it  would 
seem  that  a  non-resident  tenant  was  considered  liable  for  a  lax,  the  owner  c(f 
the  land  being  also  a  non-resident.  The  decision  of  the  court  was  made  under 
the  school  act  of  1819,  the  Revised  Statutes  not  being  in  force  when  the  tax  was 
laid.  The  78th  section  of  the  statute  relating  to  common  schools,  under  which 
the  Superintendent's  decision  above  reported  was  pronounced,  was  new,  and, 
as  the  revisers  state  in  their  notes,  was  taken  substantially  from  a  bill  reported 
to  the  assembly  in  the  year  1826.  Although  the  provisions  of  law,  according  to 
which  these  two  cases  were  determined,  were  essentially  different,  the  supreme 
court  having,  though  incidentally,  given  the  opinion  that  the  tenant,  who  was 
a  non-resident,  was  liable  for  the  t&x  on  so  much  of  the  land  as  he  occupied^ 
and  that  he,  "  for  the  time  being,  was  owner,"  it  would  seem  that  a  non-resi- 
dent tenant  might,  under  section  78,  be  taxed  as  owner,  for  the  time,  for  clesur^ 
ed  and  cultivated  land  in  the  same  manner  as  if  the  fee  were  in  him.  h ' 


SUPERINTENDENT    OP   COMMON   StitOOLS.  76 

from  the  last  aasessment  roll  of  the  town."  If  the  Bridge  Com- 
pany is  on  the  assessment  roll  of  the  town,  and  the  tolls  are  col- 
lected in  your  district,  then  the  company  is  liable  to  be  taxed  in 
the  district  in  the  same  manner  as  in  the  town.  Under  the  for- 
mer laws,  and  when  the  amount  assessed  upon  corporations  was 
distributed  to  the  several  towns  where  the  stockholders  resided, 
it  was  decided  that  the  school  tax  must  be  assessed  upon  the  in- 
dividual stockholders  according  to  their  interest,  and  not  upon 
the  corporation.  The  laws  for  assessments  upon  corporations 
have  been  essentially  varied,  and  as  they  now  stand,  all  Banks 
and  other  moneyed  or  stock  corporations,  deriving  an  income  or 
profit  from  their  capital  or  otherwse,  are  liable  to  taxation  on 
their  capital,  in  all  assessments  for  school  district  purposes. 

The  Commissioners  of  Common  Schools  of  the  town 
of  Olive,  ex  parte. 

Alterations  ought  not  to  be  made  in  school  districts  when  the  effect  is  to  give 
particular  individuals  unjust  advantages  in  respect  to  others. 

This  was  an  application  to  the  Superintendent  for  his  opinion 
on  the  following  statement  of  facts :  A.  B.  and  C.  were  an- 
nexed to  school  district  No.  8  in  the  town  of  OHve,  after  a  school- 
house  had  been  built  and  paid  for  in  that  district.  Sometime 
afterwards  the  commissioners  of  common  schools  formed  a  new 
district,  and  annexed  to  it  A.  B.  and  C.  by  setting  them  off 
from  No.  8.  The  individuals  thus  set  off,  claimed  that  they 
were  entitled  to  a  portion  of  the  value  of  the  school-house  of  No. 
8,  although  they  had  contributed  nothing  towards  its  construc- 
tion. 

By  A.  C.  Flagg,  March  14,  1831.  The  case  stated  in 
your  letter,  where  certain  persons  were  annexed  to  a  district 
which  had  a  school-house  previously  constructed  and  who  being 
detached  again,  claim  to  receive  a  portion  of  the  value  of  a  house 
which  they  did  not  help  to  build,  is  one  in  which  a  strict  com- 
pliance with  sees.  67  and  68  would  operate  inequitably  upon 
those  who  only  retain  the  house  which  they  themselves  built — 
In  such  a  case,  those  who  are  set  off  ought  not  to  ask  remunera- 
tion; and  if  this  is  not  satisfactory,  it  would  be  less  unjust  to 
them  to  be  set  back  to  No.  8,  than  it  would  be  to  the  inhabitants 
of  the  latter  to  be  taxed  to  pay  to  those  who  had  contributed 
nothing  to  the  erection  of  the  house,  a  portion  of  its  value. 

This  is  a  case  in  which  the  commissioners  should  have  de- 
clined setting  the  persons  off  if  they  required  the  appraisement 
of  the  school-houee.  ^' 

0  bfWf^  ismw '  tiiti9<;>  Y»w  Jisii  on  fid  0j«>  si9ftT     -tM^v 


76  .^.'.v.»!\  cases  decided  by  the     m.^'^j? 

(anonymous.) 

Aliens  may  vote  at  district  meetings. 

By  A.  C.  Flagg,  March  15,  1831.  Aliens  may  vote  at  dis- 
trict meetings.  The  general  law  for  regulating  elections,  pro- 
vides that,  "  every  male  citizen"  having  a  certain  residence,  may 
vote.  The  statute  relating  to  schools,  says,  "  No  person"  shall 
vote  at  district  meetings  unless  he  has  certain  qualifications. 
Subdivision  2,  of  sec.  74,  requires  the  district  clerk  in  calling  a 
special  meeting,  to  notify  "  each  inhabitant  of  such  district,  liable 
to  pay  taxes."  All  persons  or  inhabitants,  who  pay  taxes,  are 
therefore  entitled  to  vote.  The  school  statute  does  not  require  citi- 
zenship as  a  qualification  for  voting;  and  an  alien,  who  is  a  resi- 
dent of  the  district,  and  has  the  other  qualifications,  is  entitled  to 
vote. 

The  Trustees  of  school  district  No.  4  in  the  town  of 
Lenox,  ex  parte. 

Trustees  shoxild  see,  when  they  employ  a  teacher,  that  he  has  a  certificate  of 
qualification. 

If  a  teacher  does  not  pass  an  examination  before  the  inspectors,  his  wages  must 
be  collected  by  a  warrant  against  those  who  hare  sent  their  children  to 
school. 

Certificates  of  qualification  are  good  for  a  year,  even  though  given  by  the  inspec- 
tors for  a  shorter  period. 

This  was  an  application  to  the  Superintendent  by  the  trustee? 
of  school  district  No.  4  in  the  town  of  Lenox,  for  the  purpose  of 
being  advised  as  to  the  proper  course  to  be  pursued  to  pay  the 
wages  of  a  teacher  who  had  been  engaged  in  teaching  three 
months,  and  on  application  to  the  inspectors,  and  after  an  exami- 
nation by  them,  had  been  refused  a  certificate  of  quahfication  for 
a  year;  but  received  one  from  the  inspectors  limited  in  duration, 
by  its  terms,  to  one  month.  The  principal  question  submitted 
WEis  whether,  on  the  certificate  received  by  the  teacher,  the  pub- 
lic money  might  be  paid  to  him  for  the  three  months  preceding 
the  time  when  it  was  given. 

By  A.  C.  Flagg,  April  16,  1831.  The  trustees  of  a  district 
can  issue  a  warrant  for  the  school  bills  of  a  teacher  who  has  no 
certificate  as  well  as  for  one  who  has.  In  applying  the  public 
money  however,  they  can  only  pay  it  to  those  who  are  duly 
qualified.     (See  sec.  24.) 

When  the  trustees  employ  a  teacher  to  whom  they  intend  to 
pay  the  public  money,  they  ought  to  know  that  he  has  a  certifi- 
cate dated  within  one  year  of  the  time  of  his  employment.  Th« 
certificate  of  the  inspectors,  if  it  is  good  for  a  month  is  good  for  a 
year.     There  can  be  no  half  way  certificates;  k  is  either  good  or 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  77 

bad  for  the  whole  time.  1  have  always  decided  in  cases  where 
a  conditional  certificate  was  given,  that  so  far  as  the  trustees  and 
the  district  were  concerned  the  certificate  must  be  considered 
good.  But  in  your  case  the  teacher  did  not  apply  for  a  certifi- 
cate until  the  end  of  three  months,  and  then  failing  to  pass  a 
satifactory  examination,  he  could  not  be  considered  a  qualified 
teacher  for  the  preceding  three  months. 

You  can  collect,  by  warrant,  the  whole  amount  of  this  teacher's 
wages  from  those  who  sent  to  school,  but  no  part  of  the  public 
money  can  be  paid  to  him. 

*)  (anonymous.) 

Unless  fuel  is  provided  by  tax  it  must  be  furnished  by  those  who  send  children 

to  school. 
.If  any  person  neglects  to  furnish  his  proportion  of  fuel,  the  amount  may  be  !»• 
'  eluded  in  the  rate  bill  or  sued  for.  !  - 

By  A.  C.  Flagg,  April  22,  1831.  Where  a  district  meet- 
ing votes  to  provide  fuel  by  a  tax,  according  to  sec.  61,  sub.  5, 
the  tax  must  be  assessed  upon  all  the  inhabitants  of  the  district 
according  to  the  pioperty  owned  and  possessed  by  them  respec- 
tively, whether  they  send  to  school  or  not.  Where  a  district 
does  not  vote  to  provide  fuel  by  a  tax,  each  person  sending  to 
school  can  be  required  by  the  trustees,  to  furnish  fuel  in  propor- 
tion to  the  number  of  children  sent.  If  any  person  neglects  to 
furnish  his  proportion  of  fuel,  the  trustees  may  furnish  it,  and  an- 
nex the  amount  paid  for  it  to  the  school  bill  of  the  delinquent  at 
the  close  of  the  school  term,  or  they  may  prosecute  him  for  it  in  their 
name  of  office.  To  enable  the  trustees  to  make  an  apportionment 
of  fuel  at  the  commencement  of  the  school,  they  can  ascertain  how 
many  scholars  each  inhabitant  proposes  to  send,  and  graduate 
the  fuel  accordingly.  If,  in  the  progress  of  the  school,  the  num- 
ber is  varied,  the  apportionment  can  be  altered  so  as  to  do  jus- 
tice to  the  parties  concerned. 

(anonymous.) 

^  A  tax  can  not  be  laid  on  the  property  of  a  district  to  pay  school  bills. 

By  A.  C.  Flagg,  May  7,  1831.  The  district  has  no  power 
to  vote  a  tax  to  pay  a  school  bill.  The  school  bill  must  be  paid 
by  those  who  send  to  school.  If  they  are  in  the  district  the  bill 
can  be  collected  by  warrant:  if  they  live  out  of  the  district,  by 
sec.  89,  the  trustees  can  prosecute  them,  in  their  name  of  office. 

If  the  warrant  to  collect  a  bill  has  run  out,  and  new  trustees 
are  chosen,  the  new  trustees  must  sigrn  the  renewal. 


^  n,  >         CASES    DECIDED    BY    THE 

The  Commissioners  of  Common  Schools  of  the  town 
':  of  Nunda,  ex  parte. 

2n  apportioning  the  value  of  a  school-house  belonging  to  a  district  lying  partly  ia 
two  towns,  the  commissioners  should  follow  the  assessment  rolls  of  the  towns. 

This  was  an  application  for  the  direction  of  the  Superinten- 
dent in  a  case  where  a  school  district  had  been  formed  by  setting 
off  from  a  district  lying  partly  in  two  towns  a  portion  of  its  terri- 
tory and  inhabitants.  On  examining  the  assessment  rolls  of  the 
two  towns  for  the  purpose  of  apportioning  the  value  of  the  school- 
house  belonging  to  the  old  district  among  the  persons  set  off  to 
the  new  one,  the  commissioners  found  the  standard  of  valuation 
in  one  town  much  higher  than  in  the  other,  and  the  ques- 
tion submitted  was,  whether  they  had  a  right  to  equalize  the 
apportionment  by  disregarding  the  assessment  rolls  of  the  two 
towns,  and  adopting  a  standard  of  valuation  which  should  be 
uniform  as  to  both. 

By  A.  C.  Flagg,  June  4,  1831.  If  a  new  district  was  form- 
ed from  Nunda  and  an  adjoining  town,  it  was  proper  to  appraise 
the  school-house  retained  by  the  old  district. 

In  apportioning  the  value  of  the  school-house,  it  is  to  be,  by 
sec.  68,  "according  to  the  taxable  property,"  to  be  ascertained 
from  "the  best  evidence  in  the  power  of  the  commissioners." 
The  assessment  roll  is  ordinarily  the  best  evidence  which  the 
c-ommissioners  can  have.  I  think  that  the  commissioners  should 
follow  the  assessment  rolls  of  the  towns;  and  if  any  persons 
are  aggrieved,  they  can  appeal  to  the  Superintendent  for  an  equa- 
lization of  the  apportionment. 

The  Trustees  of  school  district  No.  1  in  the  town  of 
.V  Conewango,  ex  parte. 

The  jurisdiction  of  the  trustees  and  collector  of  a  school  district,  in  collecting 

rate  bills  by  warrant,  is  limited  to  the  district. 
Rate-bills  must  be  collected  of  residents  by  warrant,  and  of  non-residents  by 

prosecution. 

This  was  a  case  in  which  two  non-residents  had  sent  children 
into  school  district  No.  1  in  the  town  of  Conewango  to  attend 
school,  and  who,  in  consequence  of  a  difficulty  in  respect  to  the 
application  of  the  public  money,  had  refused  to  pay  their  school 
bills.  The  question  presented  to  the  Superintendent  was  whe- 
ther a  warrant  could  be  issued  to  the  collector  by  the  trustees  for 
the  collection  of  the  amount  due  from  the  non-residents  referred 
to,  on  account  of  their  portion  of  the  teacher's  wages. 

By  A.  C.  Flagg,  June  21,  1831,  I  am  inclined  to  the  opi- 
nion that  the  remedy  given  in  the  89th  sec.  intended  to  limit  tlw 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  79 

jurisdiction  of  the  trustees  and  collector,  in  collecting  a  rate-bill, 
to  the  boundaries  of  the  district. 

Non-residents  of  the  district  who  have  lands  therein,  may  be 
subject  to  the  operation  of  the  warrant  of  the  trustees,  where 
they  come  under  the  77th  or  78th  sec.,  being  specially  made 
taxable  inhabitants  by  those  sections. 

TJie  provisions  in  subdivision  13  of  sec.  75  authorizes  the 
trustees  to  make  a  rate-bill  against  every  person  who  is  liable  for 
teachers'  wages.  This  would  seem  to 'give  color  of  jurisdiction; 
but  yet  I  am  inclined  to  believe  that  it  is  restricted  by  section  89. 
The  provision  in  section  88  authorizing  the  collector  to  proceed 
as  on  executions  issued  by  a  justice  of  the  peace,  applies  only  to 
the  manner  of  executing  the  process,  but  does  not  extend  its  ju- 
risdiction. 

A  rate-bill  against  residents  of  the  district  must  be  collected  by 
warrant  issued  by  the  trustees,  and  against  non-residents  of  the 
district  by  a  prosecution  on  the  part  of  the  trustees,  in  their 
name  of  office,  and  not  otherwise  in  either  case."* 

■'  m 

The  Trustees  of  school  district  No.  13  in  the  towTi 
of  Edmeston,  against  the  Commissioners  of  Com- 
mon Schools  of  said  town.  ./i 

If  the  record  of  an  alteration  in  a  school  district  does  not  show  that  the  consent  of 
the  trustees  was  obtained,  the  fact  may  be  proved  by  other  testimony,  and  the 
omission  does  not<invalidate  the  proceedings.  > 

Where  the  proper  records  have  not  been  made,  the  legal  existence  of  school  dis- 
tricts will  be  presumed,  if  they  have  been  organized  for  a  length  of  time. 

This  was  a  case  in  which  the  commissioners  of  common 
schools  of  the  town  of  Edmeston  in  the  year  1830  set  off  from 
school  district  No.  9  to  No.  13  several  inhabitants,  but  neglect- 
ed to  set  forth  in  the  record,  agreeably  to  the  form  prescribed  by 
the  Superintendent  of  Common  Schools,  that  the  consent  of  the 
trustees  of  No.  9  had  been  obtained.  In  the  year  1831,  the  suc- 
cessors of  the  commissioners  who  made  the  alteration,  refused  to 
apportion  to  district  No.  13  any  part  of  the  public  money  on  ac- 
count of  the  children  of  the  persons  set  off  to  it  from  No.  9,  up- 
on the  ground  that  the  proceeding  was  void,  as  the  record  did 

•  By  various  enactfments,  warrants  for  the  collection  of  all  taxes  for  school  dis- 
trict purposes,  as  well  as  rate  bills  for  teachers'  wages,  must  direct  the  collector 
to  proceed  in  the  same  manner  as  on  warrants  issued  by  boards  of  supervisors  to 
the  collectors  of  towns.  The  principle  of  this  decision  is,  therefore,  essentially 
varied,  excepting  in  a  few  cases.  The  decision  by  John  A.  Dix,  bearing  date 
the  6th  March,  1837,  in  a  case  presented  from  the  town  of  Willsborough,  con- 
tains a  full  examination  of  the  law  applicable  to  cases  of  this  description,  and  in 
relation  to  the  limits  within  which  school  district  ofBcers  charged  with  the  col- 
lection of  taxes,  may  exercise  jurisdiction. 


80  -UQCn    ►CASES    DECIDED    BY    THE         '  ^'^ 

not  show  thfe  consent  of  the  trustees  of  the  latter  district  to  the 
alteration.  From  this  decision  of  the  commissioners  the  trustees 
of  No.  13  appealed. 

By  A.  C.  Flagg,  Jtine  25,  1831.  On  the  appeal  of  Sannp- 
son  Chase  and  David  Nichols,  jun.,  trustees  of  district  No.  13, 
Edmeston,  from  the  decision  of  the  commissioners  of  said  town, 
in  not  apportioning  to  said  district  the  public  money  for  that 
portion  of  the  annual  report  which  embraced  the  children  set 
from  No.  9  in  1830,  if  appears  by  a  statement  received  from 
the  commissioners  that  they  did  not  consider  the  proceedings 
of  their  predecessors  legal  in  breaking  up  district  No.  9  in  1830, 
and  setting  the  inhabitants  to  No.  3  and  13,  for  the  reason  that 
the  trustees  of  the  latter  districts,  as  appears  from  the  record, 
had  no  notice  of  such  alteration,  and  of  the  additions  made  to 
their  respective  districts.  The  notice  they  admit  wets  duly  served 
on  the  trustees  of  the  district  which  was  broken  up. 

The  commissioners  who  were  in  office  in  the  year  1830,  have 
testified  that  when  they  made  the  alteration,  notice  was  duly 
served  on  the  trustees  of  No.  9,  and  that  no  other  notice  was 
given  to  the  trustees  of  No.  13  than  to  read  over  the  proceedings 
in  regard  to  the  alteration  in  the  hearing  of  the  said  trustees  of 
No.  13,  who  were  present  when  the  commissioneis  dissolved 
No.  9. 

It  seems  that  the  trustees  of  No.  13  were  present  and  consent- 
ed to  the  alteration  of  their  district,  and  that  due  notice  was  given 
to  No.  9,  and  therefore  the  alteration,  so  far  a».13  was  concern- 
ed, was  complete,  except  that  it  could  not  go  into  effect  for  three 
months,  the  consent  of  the  trustees  of  No.  9  being  withheld. 

In  the  new  forms,  the  consent  of  the  trustees  is  inserted  as  a 
part  of  the  record,  in  order  to  furnish  evidence  that  it  was  ob- 
tained. It  was  put  in  the  form  to  prevent  the  very  trouble  which 
has  occurred  in  this  case,  of  getting  affidavits  to  prove  that  the 
district  was  legally  formed.  But  when  the  evidence  which  the 
record  should  contain,  is  furnished  from  satisfactory  sources,  its 
omission  in  the  form  of  the  record,  does  not  invalidate  the  acts 
of  the  commissioners.  The  district  was  duly  altered,  as  the  tes- 
timony now  produced  shows,  but  the  commissioners  neglected  to 
state  the  fact  according  to  the  form. 

*  In  some  instances  districts  which  have  been  in  existence  for  tCR 
years  have  been  found  to  be  without  any  record  whatever;  but 
the  legality  of  their  existence  has  been  considered  established  by 
the  concurring  testimony  of  the  commissioners,  and  the  fact  that 
the  district  had  been  organized  and  in  regular  operation  for  so  long 
a  time.  In  such  cases  it  has  been  decided  that  the  boundaries 
should  be  defined,  as  the  district  had  been  understood  to  be ;  and 
that  the  district  should  not  be  destroyed  by  any  neglect  of  the 


SUPERINTENDENT    OF    COMMON   SCHOOLS.  81 

conimissioneis  or  clerk  in  making  out  the  record  in  the  manner 
required.  In  all  cases  where  it  can  be  avoided,  the  inhabitants 
of  a  district  should  not  be  made  to  suffer,  for  the  neglect,  in 
mere  matters  of  form,  of  any  of  the  officers  of  common  schools. 
A  less  liberal  course  would  often  visit  injustice  as  well  upon  dis- 
tricts as  upon  individuals.  Under  the  old  law,  and  by  a  former 
Superintendent,*  it  was  decided  that  for  errors  of  form  a  district 
should  not  be  deprived  of  its  money,  but  that  the  commissioners 
might  allow  the  trustees  in  such  cases  to  correct  their  reports. 

Where  a  person  who  has  paid  a  tax  for  a  school-house  is  set 
from  one  district  to  another,  without  his  consent,  he  is  exempt  by 
sec.  81  from  taxation  for  a  similar  purpose  for  4  years;  and  in 
order  that  there  may  be  evidence  at  hand  to  prove  that  he  was 
transferred  without  his  consent,  the  form  requires  that  the  fact 
should  be  stated  in  the  record.  But  if  this  is  neglected  by  the 
commissioners  the  neglect  on  their  part  does  not  deprive  the  indi- 
vidual of  his  rights;  it  only  subjects  him  to  the  inconvenience  of 
proving  the  fact  in  some  other  way.  And  when  this  is  done,  the 
trustees  would  be  bound  to  exempt  him  as  much  as  if  the  com- 
missioners had  stated  the  fact  in  the  record. 

It  is  therefore  decided  in  this  case  that  district  No.  13  Was  du- 
ly formed  by  the  commissioners  in  1830,  and  that  the  trustees 
thereof  were  authorized  to  return  the  children  set  to  their  district 
from  No.  9,  and  to  draw  the  public  money  accordingly, 

(anonymous) 

A.  B.  having  two  farms  separated  by  a  district  line  is  taxable  in  each  district 

By  A.  C.  Flagg,  July  5,  1831.  If  A.  B.  owns  two  farms. 
and  the  district  line  separates  them,  he  is  liable  to  be  taxgd  for 
each  farm  in  the  district  where  it  lies. 

The  Trustees  of  school  district  No.  13  in  the  town 
of  Avon,  against  the  Trustees  of  district  No.  9  in 
said  town. 

An  apprai'sement  of  a  school-house,  postponed  for  good  cause,  will  be  confirm- 
ed when  made  subsequently  to  the  formation  of  the  new  district. 

The  facts  of  this  case  are  fully  disclosed  in  the  Superinten- 
dent's decision. 

By  A.  C.  Flagg,  July  18,  1831.  In  the  case  of  the  ap- 
peal of  the  trustees  of  district  No.  13  of  the  town  of  Avon, 
representing  themselves  aggrieved  by  the  refusal  of  the  tnistees 
of  No.  9  of  said  town  to  collect  and  pay  to  them  a  certain  sum. 


•  Mr.  Yates. 

6 


I 


82  '*CASfiS    DECIDED   BY   THE  ** 

according  to  the  appraisement  of  the  commissicaiers,  it  appears 
that  in  December,  1830,  the  commissioners  of  said  town  formed 
a  new  district  (13)  and  attached  to  it  certain  persons  from  No.  9, 
which  latter  district  was  possessed  of  a  school-house;  this  was 
not  appraised  at  the  time  of  the  division,  under  an  expectation, 
as  is  stated  by  the  commissioners,  that  a  compromise  would  take 
place  between  those  who  were  set  off  and  those  who  remained 
in  No.  9,  so  that  the  trustees  of  the  latter  district  would  give 
their  consent  to  the  formation  of  the  new  district.  This  expec- 
tation, however,  was  not  realized,  and  on  the  21st  of  March, 
1831,  the  commissioners  met  and  appraised  the  school-house  in 
No.  9,  and  apportioned  fifty-seven  dollars  and  seventy-seven 
cents  to  be  paid  by  the  trustees  of  district  No.  9  to  the  trustees 
of  district  No.  13,  as  the  proportion  to  which  those  set  to  the 
new  district  were  entitled.  The  trustees  of  No.  9  have  ne- 
glected to  execute  the  order  of  the  commissioners;  alleging 
that  the  appraisement  should  have  been  made  at  the  time  of 
the  division.  And  the  trustees  of  No.  13  have  appealed  to 
the  Superintendent,  representing  themselves  and  those  for  whom 
they  act  as  aggrieved  by  the  refusal  of  the  trustees  of  No.  9 
to  execute  the  order  of  the  commissioners,  and  pay  over  to  them 
$57.77.  The  trustees  of  No.  9,  by  direction  of  the  Superin- 
tendent, have  been  served  with  copies  of  the  appeal  and  have 
had  an  opportunity  of  showing  wherein  their  rights  have  been 
prejudiced  by  the  omission  of  the  commissioners  to  make  the 
appraisement  at  the  time  of  the  division ;  but  have  not  shewn 
that  the  postponement  of  the  valuation  had  any  influence  upon 
the  division  or  the  formation  of  the  new  district.  It  is  therefore 
decided  that  it  is  the  duty  of  the  trustees  of  district  No,  9,  in 
Avon,'  to  collect  the  said  sum  of  fifty-seven  dollars  and  seventy- 
seven  cents  from  the  taxable  inhabitants  of  said  district,  and  to 
pay  the  same  to  the  trustees  of  No.  13,  in  the  manner  and  for 
the  purpose  contemplated  by  sec.  69  of  the  statute  relating  to 
common  schools. 

(anonymous.) 

A  saw-mill  having  an  agent  or  servant  in  charge  of  it  is  taxable  to  the  Bon-resi> 

dent  owner. 

By  A.  C.  Flagg,  August  30,  1831,  The  lot  in  your  difr 
trict  which  has  a  saw- mill  and  dwelling-house  on  it,  is  taxable 
to  the  non-resident  owner,  as  you  say  he  improves  and  occupies 
the  same  by  his  agent  or  servant  during  the  time  for  running 
the  mill,  and  whenever  there  is  water  for  the  purpose. 


f 


■^  superintendent  of  common  schools.  83 

(anonymous.) 

Children  of  the  overseers  of  poor-houses  are  to  be  enumerated  by  trustees  ol 
school  districts. 

This  was  an  application  for  the  opinion  of  the  Superintendent 
in  a  case  in  which  the  overseer  of  a  county  poor-house  resided 
in  it  with  his  wife  and  a  number  of  children  between  the  ages  of 
5  and  16  years. 

By  A.  C.  Flagg,  October  15,  1831.  The  children  of  the 
overseer  of  the  poor-house,  between  5  and  16  years  of  age,  must 
be  enumerated  and  returned  in  the  annual  reports  of  the  school 
districts.  The  intention  of  the  act  of  April  25,  1831,  is  to  ex- 
clude only  such  children  as  are  supported  at  the  county  poor- 
houses  as  paupers. 

The  Trustees  of  school  district  No. in  the  town 

of  Milan,  ex  parte. 

If  a  person  agrees  to  pay  for  a  certain  number  of  scholars  he  is  to  have  the  be- 
nefit of  the  public  money  in  reduction  of  their  school  bills. 

This  was  a  case  in  which  certain  persons  agreed  to  pay  the 
tuition  of  a  given  number  of  scholars,  whether  they  were  sent  to 
school  or  not,  with  a  view  to  encourage  the  trustees  of  the  district 
in  procuring  a  good  teacher.  In  providing  funds  to  pay  the 
teacher's  wages,  it  was  contended  by  some  of  the  inhabitants  of 
the  district  that  the  public  money  should  be  applied  exclusively 
to  the  benefit  of  the  children  actually  sent  to  school,  and  that  the 
persons  liable  by  a  special  agreement  to  pay  for  more  scholars  than 
they  had  sent  could  not  be  benefitted  by  an  application  of  the 
public  money  to  the  reduction  of  their  school  bills. 

By  A.  C.  Flagg,  November  5,  1831.  You  ask,  if  an  inha- 
bitant of  the  district  promises,  in  a  written  article,  to  pay  $5  a 
scholar  for  the  instruction  of  5  scholars  and  does  not  send  any  to 
the  school,  whether  he  can  have  any  of  the  public  money?  1  an- 
swer ;  he  is  to  be  treated  as  if  he  sent  5  scholars  to  the  vschool 
all  the  time.  The  effect  of  his  agreement  is  that  he  will  be  obli- 
gated to  pay,  whether  he  sends  or  not :  that  is,  he  is  wilUng  to 
be  considered  as  sending  all  the  time  and  pay  accordingly.  The 
trustees,  by  the  same  agreement  which  holds  the  subscriber  to 
pay  for  five  children  all  the  time,  are  bound  to  grant  the  same 
person  all  the  advantages  which  can  arise  from  sending  all  the 
time.  If  he  sends  3  out  of  the  5,  he  is  to  be  charged  in  his  bills 
as  if  he  sent  5,  because  he  has  made  a  special  agreement  to  be 
so  charged,  whether  he  sends  or  not:  and  if  his  absent  children* 
are  considered  present  for  the  purpose  of  charging,  shall  they 
not  be  considered  present  for  the  purpose  of  crediting  the  parent, 


84  CASES    DECIDED    BY   THE  Jt 

or  enabling  him  to  share  the  public  money  in  reducing  his  tui- 
tion bill?  I  think  they  should.  The  persons  who  have  made 
this  agreement  are  to  have  their  bills  made  out  as  if  thej'  had 
sent  the  number  of  scholars  subscribed  for  all  the  time. 

The  Trustees  of  school  district  No. in  the  town 

Sangerfield,  ex  parte. 

The  vendor  of  a  farm,  remaiaing  in  possession,  is  liable  for  taxes  assessed  on  it. 

The  facts  of  this  case  are  stated  in  the  opinion  of  the  Super- 
intendent. 

By  A.  C.  Flagg,  November  7,  1831.  You  state  that  in 
June,  1830,  a  resident  and  trustee  of  your  district  sold  a  farm  ta 
a  resident  of  Rensselaer  county,  which  farm  was  to  be  delivered 
to  the  purchaser  in  April,  1831,  "  free  from  all  incumbrances, 
taxes  being  particularly  specified."  In  November,  between  the 
time  of  purchasing  and  giving  possession,  a  tax  was  voted  for  the 
school-house,  and  the  seller,  as  one  of  the  trustees,  made  out  the 
tax  against  the  purchaser,  who  was  not  yet  a  resident  of  the  dis- 
trict. 

The  76th  section  declares  that  "  in  making  out  a  tax  list,  the 
trustees  shall  apportion  the  tax  on  all  the  taxable  inhabitants 
within  the  district,  according  to  the  valuation  of  the  taxable  pro- 
perty which  shall  be  owned  or  possessed  by  them,  at  the  time  of 
making  out  the  list  within  the  district."  Under  this  section  the 
trustee  in  possession  of  the  farm  might  have  been  legally  assess- 
ed therefor.  If  in  equity  or  by  contract  he  ought  not  to  pay  the 
tax,  he  had  his  remedy  under  the  83d  section  of  the  school  statute, 
and  if  the  charge  had  been  made  against  the-  purchaser  under 
that  section  it  would  Have  afforded  him  an  opportunity  to  show 
that  the  seller  had  agreed  to  pay  all  taxes. 

J.  W.  Brewer  and  others,  against  the  inhabitants  of 
school  district  No.  17  in  the  town  of  Hartwick. 

If  a  legal  vote,  which  if  given  might  have  affected  the  result,  is  rejected,  pro- 
ceedings will  be  set  aside  on  appeal. 

The  facts  of  this  case  are  stated  in  the  Superintendent's  deci- 
sion. 

By  A.  C.  Flagg,  November  15,  1831.  In  the  case  of  the  ap- 
peal of  Jonathan  W.  Brewer  and  other  taxable  inhabitants  of  dis- 
trict No.  17  in  the  town  of  Hartwick,  it  appears  by  the  affidavit  of 
Cornelius  Woodcock  that  his  vote  was  rejected  by  the  moderator, 
although  he  has  resided  in  the  district  for  the  last  year,  and  rented 
a  tenement  of  $125  in  value,  in  said  district,  the  present  year  end- 
ing the  1  st  of  April,  and  has  paid  road  taxes  this  season ;  and  that 


Jj^UPERINTENDENT    OP   COMMON    SCHOOLS.  85 

Ilis  vote  would  have  prevented  the  election  of  the  present  trustees. 
It,  is  also  proved  that  one  person  voted  for  the  trustees  who  was 
not  at  the  time  a  resident  of  the  district.  A  satisfactory  reason 
has  been  given  for  not  presenting  the  appeal  within  30  days, 
and  notice  of  the  appeal  has  been  served  on  the  clerk. 

It  is  clearly  shown  that  Mr.  Woodcock  was  a  legal  voter,  and 
that  the  rejection  of  his  vote  may  have  changed  the  result  of  the 
election.  It  is  therefore  decided  that  the  election  of  district  offi- 
cers, in  school  district  No.  17,  Hart  wick,  on  the  4th  day  of  Octo- 
ber, 1831,  be,  and  it  is  hereby  set  aside,  and  the  several  district 
offices  are  hereby  declared  to  be  vacated:  and  the  clerk  of  the 
preceding  year,  or  if  he  is  unable  to  attend  to  it,  any  taxable  in- 
habitant of  the  district  is  authorized  to  call  a  special  meeting,  by 
exhibiting  this  order,  for  the  purpose  of  choosing  district  officers, 
to  hold  until  the  annual  meeting,  on  the  4th  of  October  next,  or 
until  others  are  chosen. 

The  Trustees  of  school  district  No. in  the  town 

of  Alden,  ex  parte. 

Clerks  or  journeymen,  of  lawful  age,  are  entitled  to  vote  in  school  districts,  if 
they  have  paid  taxes  on  the  highway. 

This  was  an  application  for  the  opinion  of  the  Superintendent 
in  a  case  where  several  clerks  and  journeymen  of  lawful  age,  who 
had  been  assessed  to  work  on  the  highway,  but  who  possessed 
no  property,  claimed  to  vote  at  a  meeting  which  had  been  called 
to  lay  a  tax  for  building  a  school-house* 

By  A.  C.  Flagg,  November  29,  1831.  A  clerk  or  journey- 
man of  lawful  age  who  is  a  resident  of  the  district,  and  has  work- 
ed or  paid  taxes  on  the  highway,  is  a  legal  voter  at  district  meet- 
ings. In  the  case  of  individuals  who  have  no  property  and  no 
interest  in  the  school  the  law  may  seem  to  operate  unjustly;  but 
an  exclusion  which  would  reach  them  would  cut  off  the  poor 
man  with  a  large  family  of  children  requiring  school  accommo- 
dations, who  has  no  freehold  or  property  exempt  from  execution, 
and  who  is  made  a  voter  in  the  district  solely  on  the  ground  of 
paying  highway  or  other  taxes  to  the  town.  If  persons  who 
have  no  care  for  the  district  should  sport  with  its  best  interests, 
by  means  of  their  votes  at  district  meetings,  a  remedy  is  secured 
by  an  appeal  to  the  Superintendent,  under  sec.  110  of  the  school 
statute. 


86  CASES    DECIDED    BY   THE  ^f 

Peter  Magher,  an  inhabitant  of  school  district  No.  4 
in  the  town  of  Cherry- Valley,  against  the  Trustees 
of  school  district  No.  4  in  the  town  of  Maryland. 

Real  estate  is  taxable  where  it  lies,  and  personal  property  where  the  owner  re- 
sides. 

This  was  an  appeal  by  Peter  Magher^  who  resided  in  school 
district  No.  4  in  Cherry-Valley,  from  the  proceedings  of  the  trus- 
tees of  school  district  No.  4  in  Maryland.,  in  assessing  him  to  pay 
a  tax,  voted  to  build  a  school-house  in  the  latter  district,  on  per- 
sonal property  possessed  by  him  in  said  district.  Mr.  Magher 
was  the  owner  or  lessee  of  a  store  in  the  latter  district,  which  he 
occupied  by  an  agent  for  the  sale  of  merchandize.  The  princi- 
pal question  involved  in  the  appeal  was,  whether  he  was  taxable 
for  the  goods  in  the  district  where  the  store  was  situated,  or  in 
the  district  of  which  he  was  a  taxable  inhabitant. 

By  A.  C.  Flagg,  December  3,  1831.  A  person  can  be  as- 
sessed for  personal  property  only  in  the  district  where  he  resides: 
the  general  tax  law,  section  5  of  title  2,  provides  that  every  per- 
son shall  be  assessed  in  the  town  or  ward  where  he  resides  when 
the  assessment  is  made,  for  all  personal  estate  owned  by  him. 
Real  estate  is  assessed  in  the  town  where  it  lies  although  the 
owner  lives  in  another  town.  The  statute  relating  to  common 
schools,  authorizes  the  tax  list  to  be  made  out  against  all  the 
taxable  inhabitants  within  the  district,  and  in  relation  to  certain 
real  estate,  (sections  77  and  78,)  declares  that  the  owners  who 
are  non-residents,  for  the  purposes  of  taxation,  in  relation  to  such 
land,  shall  be  considered  taxable  inhabitants  of  the  district. 

But  there  is  no  such  provision  in  relation  to  personal  property 
of  non-residents.  Mr.  Magher  is  eisseased  for  his  personal  pro- 
perty embracing  the  goods  in  store  in  district  No.  4  in  Cherry- 
Valley,  and  in  an  assessment  in  the  district  where  he  resides  the 
valuation  would  be  taken  from  the  town  assessment,  and  he 
would  pay  taxes  on  the  goods  in  that  district.  If  Mr.  Magher 
rents  or  owns  the  store  in  district  No.  4,  he  can  be  assessed  for 
the  real  property  thus  owned  or  occupied.  If  I  am  not  mistaken 
.as  to  the  facts  agreed  upon  by  the  trustees  of  No.  4,  Maryland, 
and  Peter  Magher,  the  said  Magher  has  been  wrongfully  assessed 
in  said  district,  and  the  trustees  will  discharge  him  from  such 
wrongful  assessment  and  charge  the  amount  to  the  taxable  in- 
habitants of  the  district.* 

*  The  principle  of  this  case  is  settled  by  the  case  of  the  tmstees  of  school  dis 
trict  No. in  the  town  of  Stillwater,  page  7!. 


^m 


SUPERINTENDENT    OF    COMMON   SCHOOLS.  87 

The  President  and  Directors  of  the  Jefferson  County 
Bank,  ex  parte. 

Banks  ai*e  taxable  for  common  school  purposes. 

This  was  an  application  to  the  Superintendent  for  the  purpose 
of  ascertaining  upon  what  grounds  the  trustees  of  the  school  dis- 
trict, in  which  the  Jefferson  County  Bank  was  situated,  had 
lieen  directed  to  include  the  property  of  that  institution  in  the  as- 
sessment of  a  tax  voted  to  build  a  school- house. 

By  A.  C.  Flagg,  December  21,  1831.  The  general  tax 
law  provides  for  taxing  banks,  and  the  manner  of  collecting  the 
tax.  The  school  statute  refers  to  the  assessments  under  the  ge- 
neral tax  law,  as  the  guide  for  the  trustees  of  districts  in  levying 
taxes  which  they  are  directed  to  collect.  The  officers  of  the 
bank  for  the  purposes  of  collecting  this  tax,  are  made  to  represent 
the  corporate  property  as  much  as  trustees,  guardians,  (fee,  are 
the  property  in  their  custody  by  section  10,  title  2,  of  the  general 
tax  law.  I  conceive  that  the  general  act  for  the  assessment  and 
collection  of  taxes  settles  the  principle  as  to  the  equalization  of 
all  taxes  which  are  to  be  raised  upon  property,  unless  the  law 
imposing  the  tax  makes  special  exemptions.  And  instead  of  be- 
ing under  the  necessity  of  pointing  out  a  provision  in  the  school 
law  declaring  that  banks  shall  be  taxed  in  order  to  sustain  my 
opinion,  I  am  inclined  to  believe  that  the  bank  ought  to  show 
a  special  provision  exempting  it  from  the  operation  of  the  school 
statute  in  relation  to  taxes,  before  it  can  claim  an  exemption. 

(anonymous.) 

Tax  lists  must  include  all  taxable  inhabitants;  but  rate-bills  include  such  onlj  as 
have  sent  children  to  school. 

By  A.  C.  Flagg,  December  27,  1831.  School  bills  are  made 
out  in  proportion  to  the  number  of  scholars  sent  by  each  person. 
After  exempting  the  indigent,  the  trustees  are  directed  in  subdi- 
vision 12  of  section  75,  to  ascertain  by  examination  of  the  school 
lists  kept  by  the  teacher  the  number  of  days  for  which  each  per- 
son not  so  exempted  shall  be  hable  to  pay  for  instruction,  and 
the  amount  payable  by  each  person.  The  sum  is  assessed  up- 
on the  scholar  and  not  upon  the  property.  A  tax  upon  property 
must  in  all  cases  embrace  every  taxable  inhabitant  of  the  dis- 
trict. A  rate  bill  for  tuition  embraces  only  such  as  have  patro- 
nized the  school  by  sending  their  children  to  it. 


««. 


88  CASES    DECIDED   BY   THE  *a|^    . 

■  *  .  ■  ' 

■^  (anonymous.) 

Mode  of  proceeding  in  appraising  school-houses  explained. 

By  A.  C.  Flagg,  March  24,  1832.  In  appraising  a  school- 
house  the  commissioners  should  give  to  the  trustees  of  the  old 
district  the  sum  total  which  is  to  l^e  paid  to  the  new  district,  and 
also  the  names  of  the  individuals  for  whose  benefit  it  is  to  be 
paid,  and  the  sum  to  which  each  person  set  off  is  entitled,  see 
form  page  69. 

The  trustees  of  the  old  district  then  take  the  amount,  say  four- 
teen dollars,  and  make  out  the  tax  list  the  same  as  if  it  had  been 
voted  to  raise  fourteen  dollars  for  repairing  the  school-house,  ad- 
ding thereto  five  per  cent  for  collector's  fees.  When  collected, 
the  money  is  paid  to  the  trustees  of  the  new  district,  and  they 
credit  the  same  to  the  persons  who  were  declared  by  the  com- 
missioners to  be  entitled  to  it. 

Moses  Elkins,  a  teacher  in  school  district  No.  •- 

in  the  town  of  Plattsburgh,  ex  parte. 

Schools  should  not  be  kept  more  than  six  hours  per  day. 

This  was  an  application  from  the  teacher  of  a  district  school 
for  his  direction  in  a  case  in  which  the  trustees  of  the  district  had 
required  him  to  keep  his  school  open  eight  hours  per  day. 

By  A.  C.  Flagg,  Api'il  5,  1832.  The  law  is  not  specific  as 
to  the  number  of  hours  which  shall  constitute  a  day  in  teaching 
school.  The  custom  of  the  country  therefore  must  determine  this 
question.  So  far  as  I  am  informed  it  is  customary  to  keep  six 
hours.  It  is  not  in  ray  judgment  desirable  to  confine  chil<Jren 
more  than  six  hours  a  day. 

The  Trustees  of  school  district  No.  13  in  the  town 
of  Canton,  ex  parte. 

A  man  of  lawful  age  hired  out  for  a  year  or  six  months,  and  having  no  family,  is 
a  resident  of  the  district  in  which  he  is  hired. 

This  wa.s  a  case  in  which  a  young  man,  after  having  attain- 
ed the  age  of  21  years,  left  his  father's  house,  and  hired  him- 
self out  for  six  months  in  another  school  district.  During  the 
period  for  which  he  was  so  hired,  he  returned  to  his  father's 
house  on  a  vi.sit,  and  claimed  to  vote  at  a  meeting  of  the  inha- 
bitants of  the  district  in  which  his  father  resided. 

By  A.  C.  Flagg,  May  8,  1832.  When  a  man  arrives  at  the 
age  of  21  years,  having  no  family  of  his  own,  and  hires  out  for  a 
year  or  six  months,  his  residence  is  where  he  is  employed,  and 
he  cannot  come  into  the  district  where  his  father  may  live,  and 
vole  at  the  district  meeting. 


^SUPERINTENDENT    OF    COMMON    SCHOOLS.  89 

The  Trustees  of  school  district  No.  6  in  the  town  of 
Pawhngs,  against  the  Commissioners  of  Common 
Schools  of  said  town. 

Commissioners  cannot  be  compelled  to  pay  interest  on  moneys  withheld  from 
school  districts  in  the  discharge  of  their  duties. 

This  was  an  appeal  to  the  Superintendent  of  Common  Schools 
under  the  following  circumstances  :  In  the  year  1831  it  was  de- 
cided on  an  appeal  by  the  trustees  of  school  district  No.  6  in  the 
town  of  Pawlings,  that  the  commissioners  of  common  schools  of 
that  town  should  pay  over  to  said  trustees  a  certain  amount  of 
public  money  which  had  been  withheld  by  said  commissioners 
on  account  of  informalities  in  the  annual  reports  of  that  district. 
The  specific  sum  awarded  to  the  district  by  the  Superintendent's 
decision  was  paid  over,  and  this  was  an  appeal  by  the  trustees 
from  the  refusal  of  the  commissioners  to  pay  interest  on  the 
amount  for  the  time  during  which  it  was  withheld.  ' 

By  A.  C.  Flagg,  July  6,  1832.  In  deciding  that  the  com- 
missioners should  pay  the  school  money  to  district  No.  6.  it  was 
not  intended  to  include  any  interest.  In  relation  to  the  public 
money,  a  specific  sum  is  apportioned  to  a  district,  and  in  conse- 
quence of  a  supposed  informality  the  commissioners  withhold  it. 
The  case  is  submitted,  and  it  is  decided,  that  all  things  consi- 
dered, the  commissioners  may  accept  the  report,  or  allow  it  to  be 
amended,  and  then  pay  the  public  money  as  apportioned.  I 
should  not  think  it  fair  to  make  them  pay  interest  if  I  had  the 
power  to  do  so. 

E,  Savage,  a  taxable  inhabitant  of  school  district  No. 
3  in  the  town  of  Salem,  against  the  Trustees  of 
district  No.  9  in  said  town. 

Rule  of  taxation  applied  to  a  particular  case. 

E.  Savage  was  the  owner  of  a  farm  consisting  of  several  con- 
tiguous lots,  all  of  which  were  wholly  included  within  the  boun- 
daries of  school  district  No.  3,  excepting  lot  No.  227,  which  was 
included  within  the  boundaries  of  district  No.  9.  On  lot  227 
there  was  a  tenant  who  rented  a  house  and  a  small  garden  spot, 
but  the  residue  of  the  lot  was  worked  as  a  part  of  E.  Savage's 
farm.  The  question  presented  was  whether  the  whole  of  lot  .-ff 
No.  227  was  taxable  in  district  No,  9,  or  only  the  house  and 
garden  spot  occupied  by  his  tenant. 

By  A.  C.  Flagg,  September  3,  1832.  It  is  submitted  whe- 
ther E.  Savage  is  taxable  in  district  No.  9  for  lot  227,  which  lot 
forms  a  part  of  his  farm,  and  with  the  exception  of  a  house  and 
garden  spot,  is  now  improved  as  a  part  of  his  farm.     The  76th 


90  CABE&  DECIDED   BY   THE  ff^ 

8ecti(Hi  of  the  school  act  authorizes  the  trustees  to  assess  laxe^ 
'•on  all  the  taxable  inhabitants  within  the  distiict,  according  to 
the  valuations  of  the  taxable  property  which  shall  be  owned  or 
possessed  by  them  at  the  time  of  making  out  the  list  within 
the  district,  or  which  being  intersected  by  the  boundaries  of  the 
district,  shall  be  so  owned  or  possessed  by  them  partly  in  such 
district  and  partly  in  any  adjoining  district."  If  there  were 
no  tenant  on  lot  227,  it  clearly  would  be  assessed  to-  E.  Savage 
in  No.  3,  although  intersected  by  the  district  line  and  lying  in 
No.  9.  But  as  there  is  a  tenant  on  227,  he  is  taxable  in  No. 
9  for  the  house  and  garden,  or  such  portion  as  he  rents,  and 
E.  Savage  is  taxable  for  the  residue  as  a  part  of  his  farm,  in 
No.  3  and  not  in  No.  9.  In  4th  Wendell,  page  429,  a  case 
somewhat  similar  is  decided,  where  a  far^n  consisted  of  100 
acres  in  Cambria,  and  a  distinct  lot  of  50  acres  in  Ijewiston ; 
the  house  was  on  the  100  acres,  and  the  barn  on  the  50  acres. 
It  was  in  that  case  decided  that  the  two  lots  formed  one  farm, 
and  that  the  owner  could  not  be  assessed  in  the  town  where  the 
50  acres  and  barn  were  situated,  but  was  taxable  for  the  whole 
in  the  town  where  his  house  was  situated.  If  Mr.  Savage  had 
a  barn  on  lot  227,  that  being  a  legitimate  appendage  of  a  farm, 
it  would  not  render  the  lot  liable  to  be  assessed  in  No.  9,  or  any 
part  of  it.  It  is  my  opinion,  therefore,  that  the  H-ustees  of  No. 
9  cannot  assess  E.  Savage  in  No.  9  for  such  part  of  lot  227  as 
is  occupied  by  him  as  a  part  of  his  farm ;  and  that  the  tenant 
on  227  is  taxable  for  the  house  and  garden  spot  only.  The 
trustees  will  discharge  E.  Savage  from  the  assessment,  and  re- 
assess the  amount  put  to  him,  upon  the  other  taxable  inhabi- 
tants of  the  district. 


The  Trustees  of  school  district  No.  3  in  the  town  of 
Charlotte,  ex  parte. 

Land  belonging  to  a  minister  of  the  gospel,  if  leased  to  a  tenant,  is  taxable. 

This  was  an  application  for  the  opinion  of  the  Superintendent 
in  a  case,  in  which  a  lot  of  land  was  owned  by  a  non-resident 
minister  of  the  gospel,  and  leased  to  a  tenant  who  resided  in  the 
district,  a  tax  having  been  voted  to  build  a  school-house,  and  the 
tenant  having  claimed  an  exemption  under  the  provision  of  the 
statute,  exempting  under  certain  circumstances,  the  real  estate  of 
ministers  of  the  gospel  from  taxation. 

By  A.  C.  Flagg,  September  10,  1832.  The  land  owned  by 
a  minister  of  the  gospel,  if  rented,  can  be  taxed  to  the  tenant. 
If  the  occupant  is  the  agent  of  the  minister,  so  as  to  render  it 
necessary  to  make  out  the  assessment  against  him  as  owner,' 


SUPERINTENDENT    OF   COMMON   SCHOOLS.         •*        91 

then  the  ministerial  exemption  may  possibly  extend  to  this  lot, 
and  release  it  from  taxation.  The  exemption  of  the  real  estate 
of  ministers  of  the  gospel,  by  the  4th  sec.  sub.  8  of  the  act  re- 
lating to  the  assessment  and  collection  of  taxes,  provides  express- 
ly that  real  estate  to-  be  exenvpted  from  taxation,  must  be  occu- 
pied by  them.* 

(anonymous.) 
Taxes  for  fueh  or  repairs  may  be  voted  at  annual  meetings: 

By  A.  C.  Flagg,  November  12,  1832.  A  tax  can  be  voted 
at  the  anmra^l  meeting  for  fuel  or  for  repairing  the  school-house. 

The  Trustees  of  school  district  No.  3  in  the  town  of 
Massena,  ex  parte. 

School-houses  may  be  used  for  Sunday  schools. 

This  was  an  application  for  the  opinion  of  the  Superintendent 
as  to  the  propriety  of  allowing  the  school-house  in  district  No.  3 
in  the  town  of  Massena,  to  be  used  on  the  Sabbath  for  the  ac- 
•c^mmodation  of  Sunday  schools. 

By  A.  C.  Flagg,  December  6,  1832.  I  think  it  is  proper 
for  the  trustees  to  allow  the  school-house  to  be  used  for  Sunday 
schools.  They  are  so  intimately  and  so  usefully  connected  with 
the  objects  and  purposes  of  the  common  schools,  that  the  school- 
houses  should  not  be  shut  against  them. 

The  inhabitants  of  school  district  No.  24  in  the  town 
of  Sempronius,  against  the  Trustees  of  said  dis- 
trict. 

Land  occupied  by  an  agent  or  servant  of  the  non-resident  owner  is  taxable  to 

the  latter. 

This  was  an  application  for  the  decision  of  the  Superintendent 
on  a  statement  of  facts  agreed  on  by  the  parties. 

By  A.  C.  Flagg,  December  29,  1832.  In  the  case  of  the 
Birch  lot  in  district  No.  24,  Sempronius,  it  appears  that  the 
owner  is  a  non-resident  of  the  district;  that  a  relative  of  the 
owner  lives  on  the  lot,  which  has  about  15  acres  of  150,  cleared; 
that  it  is  uncertain  whether  the  person  living  on  the  lot  pays  rent 
or  not ;  but  that  in  the  town  assessment,  the  lot  is  taxed  to  the 
owner,  and  not  to  the  person  Hving  on  the  farm.  The  Birch 
lot  is  in  my  opinion  taxable  in  the  school  district,  under  the  77th 

*  The  principle  of  this  case  is  settled  by  the  decisioa  of  the  Superintendent, 
page  M. 


92       •  CASES    DEX^IDED   BY   THE  .* 

section,  to  the  owner,  as  being  occupied  by  his  agent  or  servant. 
The  78th  section  under  which  the  land  cleared  and  cultivated, 
only  is  to  be  assessed,  relates  to  such  lots  as  are  "not  occupied 
by  a  tenant  or  agent."  The  principle  of  the  law  is  this,  that 
where  a  family  is  on  the  lot  requiring  and  enjoying  school  ac- 
commodations, the  whole  farm  shall  be  assessed  to  build  the  house. 
Where  there  is  no  occupant  the  non-resident  owner  shall  only 
be  assessed,  for  such  paits  of  the  lot  as  he  cultivates,  and  from 
which  he  is  supposed  to  derive  some  benefit.  The  fact  that  the 
non-resident  owner  in  this  case  pays  the  town  tax,  proves  that 
there  is  no  arrangement  or  expectation  between  the  owner  and 
occupant,  that  the  latter  is  to  pay  the  taxes.  The  trustees  will 
follow  the  town  assessment. 

The  Trustees  of  school  district  No.  5  in  the  town 
of  Clifton  Park,  ex  parte. 

A  teacher,  who  at  the  commencement  of  a  term  of  instruction,  holds  a  certifi- 
cate dated  within  a  year,  is  a  qualified  teacher  to  the  end  of  the  term. 

This  w£is  an  application  for  the  opinion  of  the  Superinten- 
dent in  a  case  where  a  female  teacher  held  at  the  time  she  was 
employed  a  certificate  of  qualification,  dated  within  a  year,  from 
the  inspectors  of  common  schools  of  the  town.  Before  the  ex- 
piration of  her  term  the  year  ended,  and  her  certificate  w£is  not 
renewed.  The  question  presented  was,  whether  she  could  be 
considered  a  qualified  teacher  for  the  whole  term  or  only  for  so 
much  of  it  as  elapsed  during  the  year  commencing  at  the  date 
of  her  certificate. 

By  A.  C  Flagg,  December  30,  1832.  In  the  application 
from  district  No.  5,  Clifton  Park,  a  question  is  presented,  whe- 
ther a  teacher  having  a  certificate,  dated  within  one  year  of  the 
time  she  was  employed,  but  which  ran  out  before  the  close  of  the 
term,  is  a  qualified  teacher  under  the  law,  aild  entitled  to  receive 
the  public  money.  In  my  opinion  she  is  legally  a  qualified  tea- 
cher. Section  93  is  complied  with  if  the  teacher  at  the  time  the 
trustees  employ  her  had  a  certificate  dated  within  one  year  of 
that  time.  The  public  money  rightfully  and  legally  can  be 
paid  to  her. 

Robert  T.  Law,  a  taxable  inhabitant  of  school  dis- 
trict No.  23  in  the  town  of  Salem,  agaitist  the 
Commissioners  of  Common  Schools  of  said  town. 

No  person  who  is  set  to  a  new  district  can,  without  his  consent,  be  deprived  of 
his  ripb'  to  receive  a  portion  of  the  value  of  the  school-house  of  the  district, 
from  which  he  is  taken. 

This  was  an  appeal  from  the  proceedings  of  the  commission- 


lib. 

SUPERINTENDENT    OF    COMMON    SCHOOLS.  93 

ers  of  common  schools  of  the  town  of  Salem,  in  neglecting  to 
appraise  the  school-house  and  property  of  district  No.  8  in  said 
town,  on  the  occasion  of  forming  a  new  district.  It  appeared,  on 
the  presentation  of  the  appeal,  that  all  the  inhabitants  of  district 
No.  8,  who  were  set  off  to  the  new  district,  with  the  exception 
of  Robert  T.  Law,  relinquished  their  claim  to  a  portion  of  the 
value  of  the  school-house  belonging  to  that  district. 

By  A.  C.  'Flagg,  January  12,  1833.  Robert  T.  Law  of 
Salem,  represents  himself  aggrieved  by  being  set  off  from  dis-  , 
tdct  No  8,  Salem,  in  which  district  there  was  a  school-house, 
and  being  annexed  to  district  No.  23,  a  joint  district,  without 
appraising  the  school-house  and  apportioning  to  the  appellant 
his  share  of  the  property  of  No.  8.  It  is  for  redress  in  this  par- 
ticular that  the  appeal  is  made.  The  appellant  urges  that  the 
nev/  district  should  be  annulled,  because  the  school-house  was 
not  appraised.  This  is  unreasonable  and  will  not  be  granted. 
The  person  set  to  a  new  district,  from  an  old  one  possessed  of  a 
school-house,  has  a  right  as  an  individual  to  his  share  of  the 
value  of  the  school-house,  which  he  can  relinquish  or  not  as  he 
pleases.  The  trustees  are,  to  be  sure,  made  his  agents  for  at- 
tending to  and  securing  his  interests  in  this  particular:  but  the 
69th  section  declares,  that  the  money  received  by  the  trustees  of 
the  new  district  from  the  old  trustees,  "  shall  be  allowed  to  the  cre- 
dit of  the  inhabitants  who  were  taken  from  the  former  district,  in 
reduction  of  any  tax  that  may  be  iunposed  for  erecting  a  school- 
house."  If  the  individual  is  willing  to  waive  his  right  in  the 
school-house,  for  the  advantages  he  acquires  in  the  new  district, 
and  is  willing  to  pay  the  tax  for  the  new  school-house,  he  may 
do  so.  It  does  not  appear  that  Mr.  Law  was  among  those  who 
relinquished  their  right  in  the  school-house,  and  he  can  properly 
pursue  all  legal  remedies  to  get  his  just  due.  It  is  therefore  order- 
ed thatthe  commissioners  of  common  schools  of  the  town  of  Salem, 
ascertain  the  proportion  of  the  value  of  the  school-house  in  No.  8, 
to  which  Robert  T.  Law  was  entitled  according  to  the  valuation 
of  his  property,  and  that  they  certify  the  same  to  the  trustees  of 
district  No.  8,  who  are  required  to  collect  and  pay  over  to  the  trus- 
tees of  district  23,  the  sum  so  certified:  and  the  trustees  of  dis- 
trict No.  23  will  deduct  the  sum  thus  ascertained,  and  coUecS 
only  the  residue  of  the  assessed  tax  from  the  said  Law. 


\Mt- 


94  CASKS    BECIDED    BY   THE 

The  Trustees  of  school  district  No.  4  in  the  town  of 
German,  ex  parte. 

An  illegal  vote  does  not  necessarily  vacate  the  proceedings  of  the  meeting  «t 
•  which  it  is  given;  but  if  the  illegal  vote  might  have  aflFected  the  result,  an  ap- 
plication may  be  made  to  the  Superintendent  to  set  aside  the  proceedings. 

This  was  an  application  to  the  Superintendent  for  his  opinion 
as  to  the  effect  of  an  illegal  vote  on  the  proceedings  of  the  meet- 
ing, at  which  the  vote  was  given. 

By  John  A.  Dix,  January  31,  1833.  If  a  person  without 
the  requisite  qualifications  votes  at  a  district  meeting,  liis  vote 
does  not  necessarily  impair  the  validity  of  the  proceedings,  but 
he  may  be  prosecuted  for  the  offetice,  and  will  forfeit  the  sum  of 
ten  dollars  with  the  costs  of  prosecution.  If,  however,  it  can  be 
made  to  appear  that  the  result  might  have  been  different  if  the 
illegal  vote  had  not  been  given,  it  will  be  a  proper  cEise  for  an 
application  to  the  Superintendent  to  set  adde  the  proceedings. 

The  Trustees  of  school  district  No. in  the  town 

of  Florence,  ex  parte. 

A  person  leasing  land  at  halves  of  a  non-resident  owner  is  taxable  for  it. 

This  was  a  case  in  which  a  non-resident  owner  of  land  leas- 
ed it  to  a  tenant,  who  by  the  conditions  of  the  lease  was  to  pay 
to  the  lessor  one  half  of  the  products.  The  question  presented 
was,  whether  the  land  should  be  taxed  to  the  non-resident  owner 
or  the  lessee,  who  was  in  possession. 

By  John  A.  Dix,  February  5,  1833.  If  a  non-resident 
owner  of  real  property  lets  it  at  halves,  the  tenant  in  possession 
must  be  taxed  for  the  whole  amount  assessed  on  the  property, 
under  section  76,  1  R.  S.  page  482.  The  apportionment  of  the 
tax  between  him  and  the  owner  is  a  question  for  tliem  to  settle 
by  agreement  or  otherwise  between  themselves,  and  not  for  the 
trustees  of  the  district  in  which  the  property  lies.  If  the  tax  be 
assessed  for  any  of  the  purposes  specified  in  section  83,  page  483, 
same  vol.,  the  tenant  in  possession  would  have  a  valid  claim  on 
the  owner  for  the  whole  amount,  provided  he  held  upon  any  of 
the  conditions  recited  in  that  section,  and  had  made  no  agree- 
ment with  the  owner  to  the  contrary,  and  the  tax  voted  was  for 
one  of  the  purposes  specified.  This  is  a  case  of  the  description 
last  referred  to.  The  tax  was  for  building  a  school-house.  The 
tenant  in  possession  must  be  looked  to  for  the  tax ;  but  unless 
there  was  an  agreement  to  the  contrary,  the  owner  must  pay 
over  the  whole  amoimt  to  him.  If  he  will  not  do  it  voluntarily, 
he  may  be  compelled  by  a  suit  at  law.  But  the  district  must 
collect  the  tax  of  the  tenant  on  whom  it  was  assessed. 


SUPERINTENDE»JT    OF   COMMON    SCHOOLS.  ^5 

The  Trustees  of  school  district  No.  10  in  the  town 
of  Smyrna,  ex  parte. 

Trastees  ot  school  districts  are  not  required  to  take  and  subscribe  the  <oath  pre- 
scribed in  the  constitution. 
Trustees  in  assessing  taxes  may  administer  an  oath  when  a  reduction  is  claimed. 

This  was  an  application  to  the  Superintendent  by  the  trustees 
of  school  district  No.  10  in  the  town  of  Smyrna,  for  his  opinion 
as  to  the  necessity  of  taking  the  oath  of  office  when  they  were 
required  to  proceed  in  the  same  manner  as  town  assessors  in  as- 
sessing a  tax,  and  as  to  their  right  to  administer  an  oath  to  a 
person  claiming  a  reduction  in  the  amount  of  the  valuation  of 
his  taxable  property. 

By  John  A.  Dix,  February  9, 1833.  The  constitution  of  this 
state,  article  6,  provides  that  "members  of  the  legislature,  and 
all  officers,  executive  and  judicial,  except  such  inferior  officers  as 
may  by  law  be  exempted,"  shall  take  and  subscribe  the  oath 
therein  prescribed. 

Whether  trustees  of  school  districts  are  to  be  regarded  as  infe- 
rior officers  within  the  meaning  of  this  provision  of  the  constitu- 
tion, may  be  considered  doubtful.  But  they  are  charged  with 
the  exercise  of  certain  powers  for  the  benefit  of  the  inhabitants  of 
the  districts  for  which  they  are  appointed  ;  and  as  they  are  en- 
trusted with  the  expenditure  of  the  income  of  the  school  fund, 
their  trust  must  be  regarded  as  partaking  of  a  public  character, 
if,  as  is  said,  the  nature  of  the  duty  to  be  performed,  and  not  the 
extent  of  the  authority,  determines  the  character  of  the  officer. 
In  the  convention  by  which  the  constitution  was  framed,  great 
differences  of  opinion  prevailed  with  regard  to  the  extent  of  the 
provision  prescribing  the  oath  of  office.  Some  of  the  members 
were  of  opinion  that  it  did  not  embrace  town  officers,  that  it  was 
applicable  only  to  those  officers  whose  stations  required  them  to 
swear  to  the  constitution  of  the  United  States,  or  such  as  are  enu- 
merated in  section  3,  article  6,  of  that  instrument.  The  lan- 
guage of  this  section  is  that  "all  executive  and  judicial  officers, 
both  of  the  United  States  and  of  the  several  states,  shall  be  bound 
by  oath  or  affirmation,  to  support  this  constitution,"  &c.  The 
section  of  the  constitution  of  this  state,  as  originally  reported,  was 
nearly  identical  in  language  with  this,  so  that  the  difficulty  of 
construction  was  not  relieved  by  the  reference  to  the  constitution 
of  the  United  States.  Some  of  the  members  were  of  opinion  that 
town  officers  were  embraced  by  it;  and  on  the  final  adoption  of 
the  provision  the  words  "  except  such  inferior  officers  as  may  by 
law  be  exempted,"  were  introduced  as  an  axnendment  and  car- 
ried, although  at  a  previous  stage  of  the  discussion  &  similar 


e 


96  CASES    DECIDED   BY   THE 

amendment  was  opposed  as  useless  and  withdrawn  by  the  mo- 
ver. 

If  any  inference  is  to  be  drawn  from  these  discussions  it  is  that 
town  officers  were  within  the  scope  of  the  provision  of  the  con- 
stitution as  adopted ;  and  it  would  seem,  therefore,  that  a  special 
exemption  would  have  been  necessary  to  release  them  from  the 
obligation  of  taking  the  constitutional  oath  of  office,  if  the  law  had 
been  silent  as  to  other  officers.  But  such  is  not  the  case.  The 
statute  has  undertaken- to  specify  by  what  classes  of  officers  the 
oath  shall  be  taken.  The  highest  judicial  and  executive  offi- 
cers in  the  state  are  required  by  the  1  R.  S.  sec.  20,  page  119, 
to  take  the  oath,  although,  if  the  statute  had  been  silent,  the 
obUgation  to  take  it,  by  virtue  of  the  constitutional  provision, 
would  have  been  equally  imperious.  The  course  of  legislation  on 
this  subject  is  so  far  important  in  its  bearing  upon  the  question 
that  it  may  tend  to  throw  light  upon  the  intention  of  the  legisla- 
ture, with  regard  to  the  exemption  of  inferior  officers  from  the 
constitutional  requirement.  If,  from  the  fact  that  the  legislature 
has  undertaken  to  enumerate  all  the  classes  of  officers  who  shall 
take  the  constitutional  oath,  the  inference  may  be  drawn  that 
all  inferior  officers,  not  embraced  in  such  enumeration,  were  de- 
signed to  be  exempted,  a  construction  of  the  law  which  shall  be 
in  accordance  with  that  intention  ought  to  prevail. 

With  regard  to  certain  town  officers  the  statute  is  silent,  while 
others  are  required  to  take  the  oath.  Of  the  latter  class  are  the 
supervisor,  town  clerk  and  others,  pages  345  and  346,  1  R.  S. 
while  the  commissioners  and  inspector  of  common  schools,  and 
some  others,  are  merely  required  to  file  in  the  town  clerk's  office 
a  notice  of  the  acceptance  of  their  respective  offices.  The  office 
of  commissioner  of  common  schools  is  a  much  more  responsible 
one  than  that  of  trustee  of  a  school  district,  not  only  as  regards 
the  more  extended  sphere  of  the  jurisdiction  and  the  nature  of 
the  duties  to  be  discharged,  but  in  respect  to  the  pecuniary  ha- 
bility  incurred,  by  reason  of  the  sums  of  money  confided  to  the 
incumbents  for  distribution.  As  these  officers  are  merely  re- 
quired to  file  a  notice  of  their  acceptance,  and  as  other  town  offi- 
cers are  required  by  the  same  title  to  take  the  oath,  there  can  be 
no  doubt  that  the  intention  of  the  legislature  was  to  exempt  the 
former  from  the  constitutional  obhgation;  although  the  exemp- 
tion is  left  to  be  inferred  from  the  silence  of  the  statute  with  re- 
gard to  them,  and  from  its  express  provisions  with  respect  to 
others  of  the  same  grade. 

If  this  construction  of  the  statute  be  conect,  it  would  be  unrea- 
sonable to  suppose  that  it  was  the  intention  of  the  legislature  to 
leave  officers  of  school  districts,  who  are  of  a  grade  still  inferior, 
to  the  operation  of  the  provision  of  the  constitution  prescribing 


SUPERINTENDENT    OF    COMMON  SCHOOLS.  97 

the  oath  of  office.  On  the  contrary,  as  the  statute  has  enume 
rated  the  classes  of  officers,  by  whom  the  oath  shall  be  taken ;  as 
the  exemption  of  the  commissioners  and  inspectors  of  common 
schools  is  inferred  from  its  silence  in  relation  to  them,  and  as  the 
act  relating  to  common  schools  is  silent  as  to  school  district  offi- 
cers, it  may  be  fairly  assumed  that  the  latter  were  intended  to 
be  exempted.  The  question  must  manifestly  be  settled  by  con- 
struction; and  as  no  special  exemptions  of  inferior  officers  have 
been  made  by  law,  it  is  not  unreasonable  to  infer  a  design  to 
exempt  in  one  case  from  circumstances,  which  in  another  case 
are  deemed  conclusive  as  to  the  intention  of  the  legislature. 

It  is  worthy  of  observation  that  by  the  acts  of  19th  June, 
1812,  and  15th  April,  1814,  for  the  establishment  of  the  com- 
mon school  system,  there  was  no  provision  by  which  trustees  of 
school  districts  were  required  to  take  an  oath  of  office,  although 
it  was  provided  that  the  clerk  should  be  "  qualified  by  oath  or 
affirmation,"  as  town  clerks  by  law  are  qualified.  By  the  act 
reorganizing  the  common  school  system,  passed  the  12th  April, 
1819,  and  repeahng  the  act  of  15th  April,  1814,  (the  act  of  1812 
had  been  already  repealed,)  the  provision  requiring  the  clerk  of 
the  school  district  to  be  sworn  was  not  re-enacted :  and  although 
the  commissioners  of  common  schools  were,  by  the  act  of  1812, 
and  both  the  commissioners  and  inspectors  were,  by  the  acts  of 
1814  and  1819,  required  to  be  qualified  by  oath  or  affirmation, 
an  act  was  passed  on  the  23d  March,  1821,  by  which  the  pro- 
vision then  existing,  and  prescribing  such  oath  or  affirmation, 
was  repealed,  and  a  notice  of  the  acceptance  of  their  office  was 
substituted  for  it.  To  this  act  the  following  preamble  was  an- 
nexed: "Whereas  the  multiplication  of  oaths,  without  absolute 
necessity,  has  a  direct  tendency  to  impair  the  reverence  due  to 
them,  and  to  produce  consequences  unfavorable  to  the  morals 
and  good  order  of  spciety:  and  whereas  certain  oaths  of  office 
required  by  the  laws  of  this  state  are  either  unnecessary  in  them- 
selves, or  rendered  useless  by  the  change  of  those  circumstances 
which  formerly  required  them :  Therefore,  Be  it  enacted,"  &c. 

The  exemption  of  commissioners  and  inspectors,  by  the  Re- 
vised Statutes,  from  the  obligation  of  taking  the  oath  prescribed 
by  the  constitution,  is  in  accordance  with  the  provisions  of  this 
act,  which  certainly  adds  strength  to  the  inference  I  have  drawn, 
with  regard  to  the  intention  of  the  legislature  in  respect  to  trus- 
tees of  school  districts. 

I  do,  therefore,  decide  that  trustees  of  school  districts  need  not, 
before  they  enter  on  the  duties  of  their  office,  take  and  subscribe 
the  oath  prescribed  by  the  constitution  of  this  state. 

In  ascertaining  the  value  of  property  to  be  taxed,  tmstees  are 
to  be  considered  as  having  regularly  entered  on  the  discharge  of 

7 


98  CASES    DECIDED   BY   THE 

their  duties,  and  competent  to  do  any  act,  which  the  law  autho- 
rizes them  to  perform.  The  affidavit  of  a  person  claiming  a  re- 
duction in  the  valuation  of  his  property,  may  be  taken  before  the 
trustees  or  one  of  them.  The  80th  section  of  the  title  and  chap- 
ter of  the  Revised  Statutes  relating  to  common  schools,  requires 
them  in  certain  cases  to  proceed  in  the  same  manner  as  the 
town  assessors  are  required  by  law  to  proceed  in  the  valuation 
of  taxable  property.  The  25th  section  of  title  2,  chapter  13, 
Revised  Statutes,  relating  to  town  assessors,  provides  that  the 
affidavit  of  a  person  objecting  to  an  assessment  may  be  made 
before  the  assessors,  or  one  of  them,  who  are  authorized  by 
that  section  to  administer  oaths  for  the  purpose.  The  authority 
is  given  for  a  specified  purpose,  and  I  consider  the  authority  to 
administer  oaths,  for  the  same  purpose,  given  to  the  trustees  by 
the  section  requiring  them  to  proceed  in  the  same  manner  as 
town  assessors.  Although  it  is  not  expressly  given,  they  would 
not  have  the  power  to  proceed  in  the  same  manner  if,  by  deny- 
ing to  them  the  authority  of  administering  oaths  to  persons  ap- 
pearing before  them  to  dispute  the  justice  of  their  assessments, 
they  should  be  compelled,  in  order  to  give  effect  to  their  proceed- 
ings, to  call  in  the  aid  of  individuals  authorized  to  administer 
oaths  for  other  purposes. 

(anonymous.) 

A  school  must  be  kept  twenty-six  days  for  a  month,  and  seventy-eig^t  days  for 

a  quarter. 

By  John  A.  Dix,  February  11,  1833.  Whenever  the  term 
'•  month,"  is  used  in  a  contract  with  a  teacher,  it  means  a  calendar 
month.  Twenty-six  days,  therefore,  constitue  a  school  month, 
this  being  the  average  number  of  days  after  deducting  Sundays. 
Ninety-one  days  are  to  be  considered  a  quarter  of  a  year.* 
Whenever  the  term  "  quarter"  is  used  as  the  term  for  which  a 
teacher  is  employed,  seventy-eight  days  will  be  the  number, 
during  which  the  school  is  to  be  kept,  deducting  such  customary 
holidays  as  may  occur  during  the  time. 

*  See  a  case  decided  by  A.  C.  Flagg,  Jan.  20,  1830,  page  57. 


SUPERINTENDENT    OF   COMMON   SCHOOLS.  99 

The  Trustees  of  school  district  No.  4  in  the  town  of 
Scriba,  against  the  Commissioners  of  Common 
Schools  of  said  town. 

li'  a  school  district  loses  its  portion  of  the  public  money  in  consequence  of  mis- 
laying its  annual  report,  the  loss  will,  on  application  to  the  Superintendent, 
be  allowed  out  of  the  moneys  distributed  the  next  year. 

The  facts  of  this  case  are  fully  set  forth  in  the  decision  of  the 
Superintendent. 

By  John  A.  Dix,  February  18, 1833.  Whereas  it  has  been 
made  to  appear  from  affidavits  of  the  trustees  and  others,  that 
the  annual  report  of  district  No.  4  in  the  town  of  Scriba,  for  the 
year  1831,  was  regularly  made  and  deUvered  to  the  town  clerk 
of  said  town,  but  by  mistake  was  not  handed  over  to  the  com- 
missioners of  common  schools,  and  by  reason  of  this  mistake 
said  district  was  deprived  by  the  commissioners  of  the  amount 
of  pubhc  money  to  which  it  was  justly  entitled  for  the  year  1832; 
and  it  having  been  made  to  appear  that  said  district  complied  in 
all  respects  with  the  requirements  of  the  law :  It  is  ordered  that 
the  amount  to  which  said  district  was  entitled,  be  ascertained  and 
paid  out  of  the  next  moneys  which  shall  come  into  the  hands  of 
the  commissioners  of  common  schools  of  said  town,  and  that 
the  residue  of  the  public  money,  after  deducting  said  amount, 
be  apportioned  in  the  usual  manner  according  to  the  reports  of 
all  the  districts,  including  No.  4. 

The  Trustees  of  school  district  No.  4  in  the  town  of 
Champion,  ex  parte. 

School-houses  cannot  be  used  for  any  other  than  common  school  purposes,  ex- 
cepting by  general  consent 

A  vote  of  a  majority  of  the  inhabitants  does  not  render  it  proper  to  use  school- 
houses  for  any  other  than  their  legitimate  purposes. 

This  was  an  application  to  the  Superintendent  for  his  opinion 
upon  the  following  questions: 

1st.  Whether  the  trustees  have  a  right  to  hold  the  school- 
house  of  their  district  open  for  any  religious  or  temperance  meet- 
ings, when  not  encroaching  on  school  hours. 

2d.  Whether  a  vote  of  the  majority  of  the  taxable  inhabitants 
in  any  district  shall  decide  as  to  the  duty  of  trustees  on  the  ques- 
tion above  mentioned. 

By  John  A.  Dix,  February  19,  1833.  1st.  The  trustees  of 
each  school  district  have  the  custody  and  safe  keeping  of  the  dis- 
trict school-house.  They  have  the  custody  of  it  for  the  purposes 
specified  in  the  act  from  which  they  derive  their  authority  ;  and 
they  have,  therefore,  strictly  no  more  right  to  allow  it  to  be  used 
for  religious  meetings,  than  the  trustees  of  a  religious  society 


100  .»{vlK         CASES    DECIDED   BY   THE       'li»* 

would  have  to  allow  the  church  or  meeting  house  to  be  used 
for  keeping  a  school.  There  would  be  no  impropriety  in  allow- 
ing ieither  to  be  used  for  one  purpose  or  the  other,  if  no  objection 
were  raised  by  the  district  or  the  society.  But  where  controver- 
sies grow  out  of  the  application  of  a  school-house  to  purposes  not 
contemplated  in  establishing  it,  it  is  the  duty  of  the  trustees  to 
confine  its  use  strictly  to  the  legitimate  objects. 

2d.  1  do  not  consider  the  voice  of  a  majority  of  the  inhabi 
tants  of  a  district  as  a  proper  criterion  for  determining  the  pro- 
priety of  applying  a  school-house  to  other  uses  than  those  for 
which  it  was  designed.  The  law  has  determined  thb  ques- 
tion. It  cannot  with  strict  propriety  be  applied  to  other  than 
common  school  purposes.  It  may  be  otherwise  used  by  the  ge- 
neral consent  of  the  parties  interested.  But  if  such  use  were 
likely  to  distract  the  district,  by  breeding  dissensions,  and  a  re- 
spectable minority  should  apply  to  me  for  an  order  to  confine 
the  school-house  to  its  legitimate  purposes,  I  should  not  consider 
myself  at  hberty  to  deny  the  application.  The  trustees  there- 
fore should  so  act  as  to  render  any  such  application  to  me  un- 
necessary. 

Harvey  W.  Babcock  and  Amos  H.  Brown,  against  the 
Trustees  of  school  district  No.  4  in  the  town  of 
Milford. 

A  factory  unoccupied  is  taxable  to  the  non-resident  owner,  though  a  house  on 
the  same  lot  is  occupied  by  a  tenant. 

This  was  a  case  submitted  by  the  parties,  on  a  statement  of 
facts,  for  the  decision  of  the  Superintendent. 

By  John  A.  Dix,  February  19,  1833.  The  facts  submitted 
in  this  case  are  briefly  these:  There  is  a  lot  of  97  rods  of  land, 
on  which  are  a  factory  and  a  house,  the  owners  being  non-resi- 
dents. The  factory  and  house  have  been  leased  separately,  and 
the  valuations  on  the  last  assessment  roll  of  the  town  are  sepa- 
rate. A  tax  is  levied  to  build  a  school-house,  but  at  the  time 
the  tax  is  assessed,  the  factory  is  unoccupied,  the  tenant  having 
left  it.  The  question  submitted  is,  whether  the  owners  of  the 
factory  are  liable  for  the  tax  assessed  on  it. 

The  general  rule  in  relation  to  improved  property  of  non-resi- 
dent owners  which  is  unoccupied,  is  that  the  non-resident  own- 
ers are  taxable  therefor  in  the  same  manner  as  if  they  were  in- 
habitants of  the  district.  Tlie  house  is  in  the  occupation  of  a 
tenant,  and  he  must  be  looked  to  for  the  tax  upon  it,  which, 
however,  he  may  charge  upon  the  owners  under  section  83, 
1  R.  S.  page  483,  unless  there  is  an  agreement  to  the  contrary. 
The  tenant  is  not  responsible  for  the  tax  assessed  on  the  factory, 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  101 

as  the  tenancy  is  altogether  separate  from  and  unconnected  with 
it.  Decision  No.  25  of  the  Superintendent,  heretofore  pubUshed 
with  the  school  laws,  relates  merely  to  vacant  unimproved  lots, 
and  not  to  improved  property.*  In  the  case  referred  to  in  that 
decision,  the  tenant  who  occupied  ten  acres  of  improved  land,  on 
a  lot  of  which  the  residue  was  unimproved,  was  considered  as 
the  agent  of  the  owner  for  the  unimproved  part.  The  case  now 
submitted  is  entirely  different.  The  whole  property  is  improved, 
and  it  would  be  taxable  upon  the  non-resident  owners  as  a 
whole,  but  for  a  separate  lease  of  a  portion  of  it.  The  tenant 
who  is  in  possession  becomes  liable  in  the  first  instance,  under  the 
provisions  of  sec.  76,  page  482,  1  R.  S.  for  the  portion  which  he 
occupies,  but  he  is  not  liable  for  the  residue.  Indeed,  if  he  were 
to  be  considered  as  the  agent  of  the  owners  for  the  factory,  un- 
der the  decision  above  referred  to,  the  effect  would  be  only  to 
make  the  non-resident  owners  taxable  for  it  as  if  they  were  in- 
habitants. Under  whatever  view  the  question  is  considered,  it 
seems  to  me  that  the  non-resident  owners  are  taxable  for  the 
factory  in  the  same  manner  as  if  they  were  inhabitants  of  the 
district. 

The  Trustees  of  school  district  No.  10  in  the  town 
of  Shavv^angunk,  ex  parte. 

If  a  teacher  inflicts  unnecessarily  severe  punishment  on  a  pupil  he  is  answerable 
in  damages.  His  government  should  be  mild  and  parental ;  but  he  is  respon- 
sible for  the  maintenance  of  discipline  in  his  school. 

Quere. — Whether  inspectors  can  annul  a  certificate  except  on  the  grounds  on 
which  their  authority  to  examine  teachers  is  given  ? 

Corporal  punishment  has  no  sanction  but  usage. 

Teachers  cannot  demand  payment  of  their  wages  until  the  collector  has  had  30 
days  to  collect  them. 

This  was  an  apphcation  for  the  opinion  of  the  Superinten- 
dent on  several  questions  submitted  to  him,  the  nature  of  which 
is  explained  by  his  answer. 

By  John  A.  Dix,  March  1,  1833.  Teachers  are  respon- 
sible to  their  employers  for  any  abuse  of  their  authority  over  the 
children  committed  to  their  charge.  Their  government  should 
be  mild  and  parental,  but  at  the  same  time,  steady  and  firm. 
If  a  teacher  inflicts  unnecessarily  severe  punishment  upon  a 
scholar,  he  is  answerable  in  damages  to  the  party  injured.  It 
has  been  doubted  by  some  whether  the  inspectors  have  a  right 
to  annul  a  certificate,  except  upon  the  ground  on  which  their 
authority  to  examine  is  given  to  them,  viz.,  to  ascertain  the  quali- 
fications of  teachers  in  respect  to  moral  character,  learning  and 
abiUty.     The  section  of  the  law  which  gives  them  authority  to 

*  See  caae  decided  by  A.  C.  Flagg,  October  11, 1830,  page  69. 


102  CASES    DECIDED   BY   THE 

annul  a  certificate,  is  general  in  its  terms,  but  the  question  has 
been  raised,  whether  that  power  is  not  to  be  construed  as  limited 
by  the  provisions  of  the  other  sections  defining  their  powers. — 
Whether  inspectors  may  annul  a  certificate  because  a  teacher  has 
punished  a  scholar  with  too  much  severity,  depends  on  the  man- 
ner in  which  this  question  is  settled.  The  question  has  never 
been  presented  distinctly  to  the  Superintendent  in  such  a  man- 
ner as  to  obtain  his  decision  upon  it,  and  I  merely  suggest  it  as 
a  matter,  which  has  given  rise  to  doubt.  With  regard  to  the 
right  to  punish,  no  general  rules  have  been  laid  down,  and  it 
would  be  difficult,  if  not  impossible,  to  make  any  which  would 
be  applicable  to  every  case.  The  practice  of  inflicting  corporal 
punisiiraent  upon  scholars  in  any  case  whatever,  has  no  sanc- 
tion but  usage.  The  teacher  is  responsible  for  maintaining  good 
order,  and  he  must  be  the  judge  of  the  degree  and  nature  of  the 
punishment  required,  where  his  authority  is  set  at  defiance;  at 
the  same  time  he  is  liable  to  the  party  injured  for  any  abuse  of 
a  prerogative  which  is  wholly  derived  from  custom. 

The  trustees  must  pay  to  the  teacher  the  wages  which  they 
have  contracted  to  give  him;  he  cannot  be  put,  against  his  con- 
sent, to  the  inconvenience  of  collecting  his  dues  himself,  and  if 
the  trustees,  who  made  the  contract  with  him,  do  not  pay  him 
any  portion  of  his  wages,  he  can  prosecute  them  or  their  succes- 
sors in  office  for  the  whole  amount.  But  unless  they  have  made 
some  specific  agreement  ^vith  him  to  the  contrary,  he  cannot  de- 
mand payment  until  after  the  expiration  of  the  time  allowed  the 
collector  for  making  his  return  to  the  warrant  annexed  to  the  rate 
bill.  He  must  be  presumed  to  have  made  his  contract  with  fiill 
knowledge  of  the  requirements  of  the  law.  The  trustees  are  to 
be  regarded  as  acting  in  a  public  capacity,  and  they  cannot  be 
required  to  do  more  than  the  law  enjoins  upon  them,  unless  they 
have  made  themselves  responsible  individually  by  a  specific  agree- 
ment to  do  more.  The  statute  gives  the  collector  30  days  to 
execute  the  warrant,  and  the  money  by  which  the  teacher  is  to 
be  paid  will  not  be  presumed  to  be  in  their  hands  until  that  time 
has  expired.  He  cannot  before  the  expiration  of  that  time  de- 
mand his  wages,  without  showing  moneys  in  their  hands  for  the 
purpose  of  paying  him. 

Davis  Gates,  against  the  Trustees  of  school  district 
No.  22  in  the  town  of  Clarence. 

Separate  tenancies  are  exceptions  to  the  general  rnle  of  taxation  with  respect  to 
farms  lying  partly  in  tw«  districts. 

In  this  case  school  district  No.  22  in  the  town  of  Clarence  was 
formed  so  as  to  intersect  a  farm  occupied  by  the  appellant,  leaving 


SUPERINTENDENT    OF   COMMON    SCHOOLS.  103 

a  part  of  the  farm  in  district  No.  1,  from  which  No.  22  was  ta- 
ken. Mr.  Gates'  residence  was  on  the  part  of  the  farm  lying  in 
district  No.  22,  and  on  the  part  lying  in  district  No,  1,  there 
were  two  tenants,  each  occupying  specific  portions  of  it. 

By  John  A.  Dix,  March  6,  1833.  The  general  rule  is  that 
where  a  new  district  is  formed,  and  the  line  is  made  to  intersect 
a  farm,  the  whole  farm  is  to  be  taxed  in  the  district  where  the 
owner  resides.  This  would  be  the  case  with  the  farm  in  ques- 
tion, if  Mr.  Gates  were  the  only  occupant.  But  it  appears  that 
the  two  southern  lots  which  are  within  the  bounds  of  district  No, 
1  are  occupied  by  two  tenants.  Separate  tenancies  are  excep- 
tions to  the  general  rule  above  stated.  The  moment  a  part  of 
a  farm  is  leased  it  ceases  to  be  an  entire  possession,  and  the  part 
so  leased  must,  with  regard  to  taxation,  be  considered  as  follow- 
ing the  residence  of  the  lessee  or  tenant.  The  two  tenants  are 
taxable  in  No.  1  for  the  portion  of  the  farm  leased  by  them  re- 
spectively, and  Mr.  Gates,  whose  residence  is  in  No.  22,  is  taxa- 
ble in  the  latter  for  the  residue. 

The  Trustees  of  school  district  No.  4  in  the  town 
of  Hinsdale,  ex  parte. 

The  loss  of  the  record  of  a  school  district  does  not  disorganize  it,  but  the  com- 
missioners should  describe  the  boundaries  anew. 

If  the  time  for  the  annual  meeting  is  unknown,  application  should  be  made  to 
the  Superintendent  to  fix  a  day  for  holding  it. 

This  was  a  case,  in  which  the  clerk  of  a  school  district  re- 
moved from  it  and  carried  away  the  book  of  records,  and  in  con- 
sequence of  the  loss,  the  proper  time  for  holding  the  annual  meet- 
ing was  unknown.  It  was  also  alleged  that  the  description  of  the 
district  in  the  town  clerk's  office  was  imperfect. 

By  John  A.  Dix,  March  9,  1833.  The  loss  of  the  records 
of  a  school  district  does  not  disorganize  and  destroy  it.  If,  in 
consequence  of  such  loss,  and  the  imperfection  of  the  town  re- 
cords the  bounds  of  the  district  have  become  uncertain,  the  de- 
fect may  be  remedied  by  the  commissioners  who  should  meet  and 
describe  them  anew.* 

If  the  time  for  the  annual  meeting  is  unknown,  application 
should  be  made  to  the  Superintendent  of  common  schools  who 
will  by  special  order  appoint  a  time  for  holding  it.  New  dis- 
trict officers  cannot  be  elected  at  a  special  meeting  called  for 
the  purpose  by  the  trustees  or  commissioners.  This  is  not 
such  a  case  as  is  contemplated  by  section  57,  1  R.  S.  page 
477,  where  a  district  is  dissolved,  nor  is  it  such  a  case  as  is 

•  See  the  case  of  the  trustees  of  school  district  No.  13  in  the  town  of  Edmes- 
ton,  against  the  commissioners  of  common  schools  of  said  town,  page  79. 


104  •  CASES    DECIDED    BY   THE 

contemplated  by  section  71,  page  480,  where  a  vacancy  exists : 
but  it  is  a  special  case  for  which  no  provision  has  been  made  by 
law,  and  the  defect  can  only  be  remedied  by  the  interposition 
of  the  Superintendent,  who  by  virtue  of  the  general  authority 
conferred  on  him  to  pass  upon  all  questions  arising  under  the 
school  laws,  can  afford  the  required  reUef  In  the  mean  time, 
the  old  district  officers  hold  over. 

The  inhabitants  of  school  district  No.  5  in  the  town 
of  Perry sburgh,  against  the  Commissioners  of  Com- 
mon Schools  of  said  town. 

Improper  alterations  in  school  districts  will  not  be  sanctioned  for  the  purpose  of 
quieting  controversies. 

This  was  an  appeal  to  the  Superintendent  under  circumstan- 
ces fully  explained  by  his  decision. 

By  John  A.  Dix,  March  13,  1833.  It  appears  by  the" affi- 
davits presented  in  the  matter  of  appeal  from  the  proceedings  of 
the  commissioners  of  common  schools  of  the  town  of  Perrys- 
burgh,  that  the  said  commissioners,  on  the  10th  of  January  last, 
divided  school  district  No.  5  in  said  town,  and  formed  a  new 
district  under  the  designation  of  school  district  No.  22.  By  this 
division  district  No.  5  is  left  with  28  children  between  the  ages  of 
5  and  16  years,  and  with  taxable  property  amounting  in  value 
to  $4,952 ;  and  district  No.  22  is  organized  with  5  children  be- 
tween the  ages  before  mentioned,  and  with  property  of  the  value 
of  $1,731.  These  districts  united  have  neither  too  many  chil- 
dren nor  too  much  property  to  support  a  respectable  school.  On 
the  contrary,  as  one  district  it  would  be  inferior  in  strength  to  the 
average  of  the  districts  in  the  state;  and  yet  this  unequal  divi- 
sion, injurious  to  one  district  and  ruinous  to  the  other,  has  grown 
out  of  the  unwillingness  of  the  inhabitants  hitherto  to  agree  upon 
a  site  for  a  school  house  on  terms  of  friendly  accommodation. 
The  Superintendent  feels  it  his  duty  to  re-unite  the  districts; 
and  in  doing  so,  he  trusts  that  he  does  not  overrate  the  liberali- 
ty of  the  inhabitants  in  believing  that  they  will  come  together 
again  under  the  influence  of  better  counsels,  and  with  a  readi- 
ness to  adjust  the  matter  of  controversy,  which  has  divided  them, 
in  a  spirit  of  mutual  conciliation.  It  is  hereby  ordered  that  the 
proceedings  of  the  commissioners  of  common  schools  of  the  town 
of  Perrysburgh,  in  dividing  district  No.  5,  be  annulled^  and  that 
the  district  be  restored  to  its  former  bounds. 


SUPERINTENDENT    OF    COMMON   SCHOOLS.  105 

Moses  Rowley  and  others,  against  the  inhabitants  of 
school  district  No.  2  in  the  town  of  Groton. 

If  a  district  is  unaltered,  the  site  of  the  school-house  can  not  be  changed  by  a 
vote  of  14  against  8,  as  this  is  not  the  legal  majority  required. 

This  was  a  case  in  which  the  site  of  a  school-house  was 
changed  by  a  vote  of  14  to  8,  after  an  alteration  had  been  made 
in  the  district.  The  alteration  was  appealed  from  as  illegal  sub- 
sequently to  the  vote  for  changing  the  site,  and  was  declared  void 
by  the  Superintendent.  The  district  not  having  been  legally 
altered  the  change  of  site  was  appealed  from  as  unauthorized 
and  illegal. 

By  John  A.  Dix,  March  14,  1833.     It  appears  by  the  affi- 
davits presented  in  the  appeal  of  certain  inhabitants  of  school 
district  No  2  in  the  town  of  Groton,  that  the  site  of  the  school- 
house  was  changed  by  a  vote  of  the  district  on  the  12th  of 
December  last,  in  consequence  of  an  addition  of  families  from 
district  No.  17  in  Locke  and  Groton,  and  that  the  school-house 
was  subsequently  moved  to  a  point  fixed  by  individuals,  who 
were  by  general  agreement  appointed  for  the  purpose.      It  is 
alleged  by  the  appellants  that  the  vote  for  removing  the  school- 
house  was  taken  by  uplifted  hands.      This  last  allegation  is 
not  expressly  negatived  by  the  statement  of  the  trustees,  and 
it  is  admitted  by  the  latter  that  the  votes  in  relation  to  the 
new  site,  which  had  been  fixed  by  the  individuals  appointed 
for  the  purpose,  were  14  for  and  8  against  it.      The  act  of 
17th  February,  1831,  among  other  riequirements  provides  that 
whenever  a  school-house  shall  have  been  built  or  purchased 
for  a  district  the  site  of  such  school-house  shall  not  be  chang- 
ed, nor  the  building  thereon  be  removed,  as  long  as  the  dis- 
trict shall  remain  unaltered,  unless  the  commissioners  shall  con- 
sent,  and  unless  two-thirds  of  all  those  present  at  a  special 
meeting  of  such  district,  called  for  that  purpose,  <fec.  shall  vote 
for  such  removal,  and  in  favor  of  the  new  site ;  the  vote  to  be 
taken  by  ayes  and  nays,  and  the  name  of  each  voter,  together 
with  his  vote,  to  be  recorded.     This  act  applies  only  to  unaltered 
districts.     Where  therefore  a  school  district  has  been  lawfully 
altered,  the  school-house  may  be  removed  by  a  vote  of  a  majority 
of  the  taxable  inhabitants,  without  the  consent  of  the  commis- 
sioners.    But  if  the  district  is  not  altered,  the  house  can  only  be 
removed  by  the  consent  of  the  commissioners  and  a  vote  of  two- 
thirds  of  the  taxable  inhabitants,  to  be  taken  in  the  manner 
pointed  out  by  the  act  referred  to. 

By  an  order  of  the  Superintendent,  dated  the  13th  inst.,  the 
proceedings  of  the  commissioners  of  common  schools  of  the  towns 
of  Locke  and  Groton,  dissolving  joint  school  district  No.  17,  were 


^' 


106  CASES    DECIDED    BY   THE 

declared  to  be  of  no  effect.  The  bounds  of  district  No.  2  itt 
Groton  have  therefoie  never  been  altered,  and  not  only  the  con- 
sent of  the  commissioners,  but  the  votes  of  twa  thirds  of  the  per- 
sons present  are  necessary  to  render  the  removal  of  the  school- 
house  legal.  If  the  vote  in  favor  of  removing  the  school-house  at 
the  previous  meeting  had  been  taken  in  the  mode  prescribed  by 
law,  it  appears,  from  the  statement  of  the  trustees,  that  the  votes 
in  favor  of  the  new  sitewere  not  sufficient,  in  point  of  number,  to 
give  validity  to  the  proceeding.  There  were  22  persons  present, 
and  of  these  14  were  in  favor  of  the  new  site  and  8  opposed  to  it. 
Fourteen  votes  are  two-thirds  of  twenty  one,  but  not  of  twenty- 
two,  and  are  not  therefore  the  legal  number  required.  Without 
adverting  to  any  other  objection  this  alone  is  fatal  to  the  pro- 
ceeding, and  renders  the  removal  of  the  school-house  illegal.  It 
is  therefore  ordered,  that  the  school-house  be  restored  to  its  former 
site. 

The  Trustees  of  school  district  No.  6  in  the  town  of 
Cobleskill,  ex  parte* 

If,  from  unavoidable  necessity,  a  balance  of  the  public  moneys  remains  in  the 
hands  of  the  trustees,  the  district  may  receive  its  share  of  the  public  moneys 
the  next  year. 

This  was  an  application  to  the  Superintendent  for  his  opinion 
in  a  case  where  a  school  had  been  kept  in  a  district  five  months 
by  a  qualified  teacher,  to  whom  a  portion  of  the  public  money 
was  paid;  the  residue  was  retained  for  the  fall  term,  but  the 
trustees,  notwithstanding  due  diligence  on  their  part,  could  not 
procure  a  teacher;  so  that  at  the  end  of  the  year  a  balance  of 
the  public  moneys  remained  in  their  hands. 

By  John  A.  Dix,  March  16,  1833.  The  Revised  Statutes, 
vol.  1,  page  471,  section  24,  provide  that  no  money  shall  be  ap- 
portioned to  a  school  district  unless  all  moneys  received  fi^om  the 
commissioners  of  common  schools  during  the  year  ending  on  the 
31st  December  preceding  the  apportionment  shall  have  been  ap- 
phed  to  the  payment  of  the  compensation  of  a  qualified  teacher. 
The  same  section  also  requires  that  a  school  shall  have  been 
kept  in  the  district  by  a  qualified  teacher  during  three  months. 
The  statute  had  in  view  two  objects:  1st,  to  secure  a  proper 
school  to  the  district,  during  a  specific  term ;  and  2d,  to  secure 
the  appUcation  of  the  pubUc  moneys  for  the  benefit  of  those  who 
are  entitled  to  them  during  the  year  for  which  they  are  appor- 
tioned. The  penalty  annexed  to  a  non-comphance  with  these 
provisions  is  the  loss  of  the  pubUc  moneys  to  the  district  the  en- 
suing year.  Cases  may  occur  in  which  all  the  public  money 
could  not  ha VQ.  been  expended  as  contemplated  by  the  statute. 


SUPERINTENDENT   OP    COMMON    SCHOOLS.  107 

It  may  have  happened  that  a  teacher  could  not  be  procured, 
even  by  extraordinary  dihgence  on  the  part  of  the  trustees;  the 
teacher  may  have  violated  his  engagement;  or  the  district  may, 
through  some  unforeseen  accident,  have  been  deprived  of  his 
services,  so  that  all  the  pubhc  money  could  not  properly  have 
been  expended.  In  every  such  case,  where  the  school  has  been 
kept  three  months  by  a  qualified  teacher,  it  is  just  that  the  equi- 
table rights  of  the  district  should  be  preserved ;  but  this  can  only 
be  done  by  a  special  interposition  on  the  part  of  the  Superinten- 
dent. The  cases  referred  to  are  not  provided  for  by  the  statute ; 
but  they  have  alw^ays  been  considered  as  coming  within  that 
general  supervision  of  the  common  school  system  which  the  law 
has  confided  to  the  Superintendent. 

(anonymous.) 

If  the  title  to  the  site  of  the  school-house  fails,  a  new  one  may  be  fixed  by  a  ma- 
jority of  votes. 

By  John  A.  Dix,  March  18,  1833.  If  a  district  is  divested 
of  its  supposed  title  to  the  site  of  a  school-house,  the  inhabitants 
may  choose  another  by  the  votes  of  a  majority  without  the 
consent  of  the  commissioners  of  common  schools.  Where  the 
owner  of  the  land  on  which  a  school-house  stands,  and  which 
has  been  occupied  by  his  suffrance  merely,  but  without  any  for- 
mal agreement,  refuses  to  allow  it  to  be  used  for  the  purpose  any 
longer,  the  district  must  be  considered  without  a  site,  and  may 
therefore  designate  one  by  a  majority  of  votes,  in  the  same  man- 
ner as  in  fixing  a  site  originally. 

The  inhabitants  of  school  district  No.  6  in  the  town 
of  Harpersfield,  and  of  district  No.  7  in  Harpers- 
field  and  Kortright,  against  the  Commissioners  of 
Common  Schools  of  said  towns. 

New  districts  should  not  be  formed  without  sufficient  strength  to  support  respect- 
able schools. 

The  facts  of  this  case  are  given  in  the  Superintendent's  de- 
cision. 

By  John  A.  Dix,  March  20,  1833.  After  a  full  examina- 
tion of  all  the  papers  presented  in  the  matter  of  appeal  of  certain 
inhabitants  of  school  district  No.  6  in  Harpersfield,  and  district 
No.  7  in  Harpersfield  and  Kortright,  fi-om  the  decision  of  the 
commissioners  of  common  schools  of  said  towns,  in  refusing  to 
form  a  new  district,  the  Superintendent  of  common  schools  deems 
it  proper  to  sustain  the  said  decision. 

He  has  not  come  to  this  determination  without  difficulty.    The 


108  -ftJUow  ICASES   DECIDED   BY   THE 

situation  of  several  of  the  appellants  in  relation  to  their  respective 
schools  is  inconvenient,  and  the  expense  of  education  burden- 
some ;  and  if  he  could  have  afforded  them  the  required  relief, 
without  doing  injustice  to  long  established  districts,  he  would  not 
have  declined  interposing  for  the  purpose.  But  it  appears  by  an 
examination  of  the  papers  submitted,  that  district  No.  6  as  now 
organized,  has  but  34  children  between  the  ages  of  5  and  16 
years,  and  a  valuation  of  15,370  dollars,  and  that  district  No. 
7  has  but  29  children  between  the  ages  aforesaid,  and  a  valua- 
tion of  10,449  dollars.  The  number  of  children  and  the  amount 
of  taxable  property  in  each  of  these  districts,  is  certainly  no  more 
than  sufficient  to  support  respectable  schools ;  and  if  the  appel- 
lants should  be  set  off  from  them  and  organized  into  a  separate 
district,  there  is  reason  to  apprehend  that  the  interests  of  the  old 
districts  would  suffer  severely,  without  affording  any  material  re- 
lief to  the  new.  At  all  events,  the  relief  afforded  to  the  latter 
would  hardly  be  sufficient  to  justify  a  measure  which  threatens 
the  prosperity  if  not  the  existence  of  the  old  districts.  In  dis- 
tricts thinly  inhabited,  the  evils  from  which  the  appellants  seek 
to  be  relieved,  are  of  frequent  occurrence,  and  whenever  they 
can  be  removed  without  producing  others  equally  oppressive,  the 
required  relief  will  not  be  withheld.  But  the  Superintendent  is 
of  opinion  that  the  case  before  him,  for  the  reasons  above  as- 
signed, is  not  so  strong  as  to  justify  his  interposition  to  overrule 
the  decision  of  the  commissioners.  It  must  be  left  to  them  and 
their  successors,  to  make  the  necessary  alteration,  at  some  future 
time,  should  a  change  of  circumstances  authorize  it,  so  that  it 
can  be  done  in  justice  to  all  parties.  It  is  ordered  that  the  ap- 
peal in  this  case  be  dismissed. 

The  Trustees  of  school  district  No.  24  in  the  town 
of  Fishkill,  ex  parte. 

Trustees  are  bound  to  know  the  condition  of  the  taxable  property  of  their  dis- 
tricts, so  that  in  assessing  taxes  no  person  shall  be  improperly  taxed. 

This  was  an  application  for  the  direction  of  the  Superinten- 
dent in  a  case  in  which  the  trustees  making  the  application  had 
included  in  a  tax-list  a  non-resident,  who  owned  a  lot  of  land  in 
the  district,  partly  cleared  and  cultivated,  without  making  any 
deduction  for  the  unimproved  part. 

By  John  A.  Dix,  April  1,  1833.  It  is  the  duty  of  the  trus- 
tees of  a  school  district  to  ascertain  what  property  in  their  district 
is  liable  to  taxation.  They  are  required,  it  is  true,  to  make  out 
their  tax-hsts  from  the  last  assessment  roll  of  the  town.  But 
they  know  that  in  town  assessments  all  lands  are  included,  whe- 
ther cultivated  or  not,  while  the  law  expressly  provides  that  only 


SUPERINTENDENT    OF    COMMON   SCHOOLS.  109 

such  part  of  the  lands  of  non-residents  as  is  cleared  and  cultivated 
shall  be  liable  for  taxes  for  common  school  purposes.  It  is  mani- 
fest, therefore,  that  the  assessment  roll  of  the  town  is  not  a  guide 
in  all  cases ;  it  must  of  necessity  be  departed  from  sometimes,  and 
it  is  the  business  of  the  trustees  to  inform  themselves  as  to  the 
condition  of  the  taxable  property  of  the  district.  It  is  not  neces- 
sary for  a  non-resident  to  claim  a  reduction  in  such  a  case  as  this. 
It  is  enough  that  the  property  was  not  taxable.  The  collection 
of  that  part  of  the  tax  which  was  assessed  upon  unimproved  land 
cannot  be  enforced  against  the  non-resident. 

The  Trustees  of  school  district  No.  5  in  the  town  of 
Ripley,  ex  parte. 

A  tax-list  must  include  all  the  taxable  inhabitants  of  the  district  at  the  time  when 
•    it  is  made  out,  though  some  of  them  may  have  become  so  after  the  tax  is 

voted. 

{• 

This  was  an  application  to  the  Superintendent  for  his  opinion 
as  to  the  propriety  of  including  in  a  tax-list  a  person  who  moved 
into  the  district  after  the  tax  was  voted,  but  before  it  was  assess- 
ed by  the  trustees. 

By  John  A.  Dix,  April  4,  1833.     Tax-lists  must  include  all 
the  taxable  inhabitants  residing  in  the  district  at  the  time  the  % 
lists  are  made  out. 

It  makes  no  difference,  therefore,  whether  the  individual  re- 
ferred to  in  the  case  stated  by  you,  was  an  inhabitant  of  the  dis- 
trict or  n(Jt  at  the  time  the  tax  was  voted,  provided  he  was  re- 
siding in  the  district  at  the  time  the  tax-Ust  was  made  out. 

The  inhabitants  of  school  district  No.  13  in  the  town 
of  Ithaca,  against  the  Commissioners  of  Common 
Schools  of  the  .towns  of  Ithaca,  Enfield,  and  Ulys- 
ses. 

School  districts  must  be  composed  of  contiguous  farms. 

The  circumstances  under  which  this  appeal  was  brought  are 
Bet  forth  in  the  Superintendent's  decision. 

By  John  A.  Dix,  April  10,  1833.  On  the  28th  of  Febru- 
ary last  the  commissioners  of  common  schools  of  the  towns  of 
Ithaca,  Enfield,  and  Ulysses  formed  a  new  school  district,  desig- 
nated as  district  No.  27,  by  setting  off  a  part  of  district  No.  13 
in  Ithaca,  and  three  other  districts  east  and  west  of  it.  From 
this  proceeding  sundry  inhabitants  of  district  No.  13  have  ap- 
pealed. All  the  persons  set  off  to  form  the  new  district  acquiesce 
in  the  proceeding,  with  the  exception  of  Anthony  Davenport  j 
and  Moses  Van  Orden,  the  former  of  whom  has  only  one  child 


110  •?i<1*»!I*>-CASES    DECIDED    BY   THE 

and  no  taxable  property,  and  the  latter  taxable  property  to  the 
value  of  $300,  and  no  children.  It  does  not  appear  that  ei- 
ther of  these  two  persons  has  any  particular  cause  of  dissatis- 
faction with  the  arrangement  to  which  they  object ;  their  oppo- 
sition to  it  rests  upon  the  general  grounds  taken  by  the  other 
appellants,  consisting  of  a  large  portion  of  the  inhabitants  of  dis- 
trict No.  13.  The  principal  objection  raised  by  the  appellants  to 
the  division  of  district  No.  13.  is  that  the  arrangement  is  such  as 
to  separate  the  lands  of  three  persons  who  remain  in  district  No. 
13  from  the  other  territory  which  composes  it.  To  this  objec- 
tion the  commissioners  of  common  schools  furnish  no  reply.  The 
facts  stated  by  the  appellants  are  therefore  assumed  to  be  true. 
Without  adverting  to  the  other  points  presented  by  the  appellants, 
this  is  of  itself  sufficient,  in  the  estimation  of  the  Superinten- 
dent, to  justify  a  reversal  of  the  proceedings  of  the  commission- 
ers. School  districts  should  be  formed  of  contiguous  farms ;  and 
if  the  example  of  forming  them  of  farms  not  adjacent  to  each 
other,  should  be  sanctioned,  it  is  difficult  to  foresee  what  disorder 
and  confusion  it  might  not  create,  besides  opening  a  door  to  un- 
equal and  unjust  oiganizations.  It  is  therefore  ordered,  that  the 
proceedings  of  the  commissioners  of  common  schools  of  the 
towns  of  Ithaca,  Enfield,  and  Ulysses,  in  forming  school  district 
No.  27,  by  an  alteration  of  district  No.  13  in  Ithaca,  and  other 
adjoining  districts,  be,  and  they  are  hereby  annulled. 

The  Commissioners  of  Common  Schools  of  .the  town 
of  Berkshire,  ex  parte. 

A  school  district  formed  in  October,  may  receive  a  portion  of  the  public  money, 
when  the  districts,  from  which  it  was  taken,  have  complied  with  the  law. 

This  was  a  case,  in  which  a  school  district  was  formed  in  the 
month  of  October,  and  in  its  annual  report  dated  the  1st  of  Janua- 
ry ensuing,  the  trustees  could  not  state  that  a  school  had  been 
kept  in  it  3  months  by  a  qualified  teacher  during  the  year  end- 
ing at  the  date  of  the  report  The  question  submitted  to  the 
Superintendent  was,  whether  the  district  could  receive  a  portion 
of  the  public  money  the  year  succeeding  its  formation. 

By  John  A.  Dix,  April  15,  1833.  The  annual  reports  of 
the  trustees  of  school  districts  cannot  embrace  any  transactions 
subsequent  to  the  last  day  of  December.  The  district  referred 
to  was  formed  in  October.  A  school  could  not,  therefore,  have 
been  kept  for  three  months  before  the  expiration  of  the  year, 
when,  if  at  all,  its  transactions  should  be  reported.  If  under 
these  circumstances,  the  district,  was  formed  from  districts  in  which 
a  school  was  kept  three  months,  by  a  qualified  teacher,  it  is  en- 
titled to  receive  the  public  money  according  to  the  numbei  of 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  Ill 

children,  over  the  age  of  5  and  under  16  years,  on  the  same 
principle  that  the  districts  from  which  it  was  taken  are  entitled 
to  their  share.  By  referring  to  the  act  of  21st  April,  1831,  you 
will  perceive  that  this  is  precisely  the  case  contemplated  by 
that  act,  and  that  section  26  of  the  school  law  is  made  to  apply 
to  it.  The  number  of  children  residing  in  the  district  is  there- 
fore, all  the  commissioners  need  to  know. 

The  Trustees  of  school  district  No.  3  in  the  town  of 
Corinth,  ex  parte. 

If  a  school  has  not  been  kept  in  a  district  three  months  during  the  preceding 
year,  by  a  qualified  teacher,  in  consequence  of  any  over-ruling  necessity,  the 
district  will  be  allowed  a  portion  of  the  public  money. 

By  John  A.  Dix,  April  22,  1833.  It  has  been  made  to  ap- 
pear by  the  affidavit  of  Isaiah  White  and  Aster  Eggleston,  two 
of  the  trustees  of  school  district  No.  3  in  the  town  of  Corinth, 
that  a  school  was  kept  in  the  district  more  than  two  months 
by  a  qualified  teacher  during  the  summer  of  1832,  and  that  they 
engaged  a  teacher  to  commence  his  school,  on  the  first  day  of  De- 
cember of  that  year,  but  that  he  failed  to  perform  his  agreement 
and  did  not  commence  until  the  17th  of  that  month,  by  which 
means,  the  full  term  of  three  months,  during  which  a  school  is 
required  by  law  to  be  kept,  in  order  to  entitle  the  district  to  a 
share  of  the  school  moneys,  was  deficient  to  the  number  of  three 
or  four  days.  It  further  appears,  that  every  exertion  was  made 
to  procure  another  teacher,  but  without  success.  Under  these 
circumstances,  as  no  negligence  appears  on  the  part  of  the  offi- 
cers of  the  district,  and  as  the  failure  to  comply,  to  the  letter, 
with  the  requirements  of  the  law,  is  the  result  of  causes  not  un- 
der their  control ;  it  is  hereby  ordered,  that  the  commissioners  of 
common  schools  of  the  town  of  Corinth,  pay  to  the  trustees  of 
school  district  No.  3,  the  amount  of  public  money  which  that 
district  would  have  been  entitled  to  receive  on  the  2d  Tuesday 
of  this  month,  if  the  full  term  of  three  months  had  appeared 
by  the  report  of  the  trustees  to  have  been  the  period  during  which 
a  school  had  been  kept  by  a  qualified  teacher.*  ^, 


Collectors  are  allowed  the  usual  fees  of  distress  and  sale,  in  addition  to  5  cents 
on  each  dollar,  when  they  take  and  sell  the  property  of  delinquents. 


(anonymous.) 

iial  fees  of  distress  ai 
By  take  and  sell  the 

;;  By  John  A.  Djx,  May  17,  1833.     The  fees  of  a  collector 

*  The  principle  of  this  decision  is  identical  with  that,  by  which  the  case  of 
the  trustees  of  school  district  No.  4  in  the  town  of  Somerset,  page  S4,  was 
settled. 


112  CASES    DECIDED    BY    THE      .,  •    ; .; 

of  a  school  district  are  regulated  by  the  104th  section  of  the 
school  act,  when  moneys  are  collected  and  paid  over  in  the  usual 
mode.  But  the  88th  section  suppses  an  extraordinary  mode  of 
collection,  and  in  the  cases  contemplated,  I  consider  the  collec- 
tor entitled  to  the  usual  fees  allowed  by  law  in  such  cases,  and 
also  to  the  5  per  cent  given  by  section  104.  By  the  acts  of  21st 
of  April,  1831,  and  26th  April,  1832,  all  taxes  (including  rate 
bills)  are  to  be  collected  by  distress  and  sale  of  the  goods  and 
chattels  of  delinquents,  where  they  are  not  paid  on  demand  to 
the  collector.  The  usual  fees  must  be  allowed  in  all  such  cases, 
and  also  5  per  cent  for  every  dollar  collected  and  paid  to  the 
trustees.  The  fees  are  an  extraordinary  compensation  for  ex- 
traordinary trouble  and  service,  and  there  is  no  authority  to  with- 
hold the  6  per  cent. 

The  inhabitants  of  school  district  No. in  the 

town  of  Otto,  ex  parte. 

A  verbal  resignation  by  district  oflBcers  is  good. 

If  the  school  district  oflSces  are  all  vacated  by  resignation,  notice  of  such  resig- 
nation may  be  given  to  the  town  clerk. 

'When  the  ofBces  in  a  school  district  are  all  vacant  the  commissioners  of  eom- 
mon  schools  may  call  a  meeting  to  fill  them. 

'  ■  The  material  facts  of  this  case  are  stated  in  the  Superinten- 
dent's opinion. 

By  John  A.  Dix,  May  24,  1833.  It  appears  that  the  trus- 
tees and  clerk  of  the  school  district,  within  which  you  reside, 
resigned  verbally  to  three  justices  of  the  peace  of  the  town,  and 
that  the  said  justices  filed  a  certificate  to  that  effect  with  the  clerk 
of  the  commissoners  of  common  schools  (the  town  clerk)  of  said 
town.  The  commissioners  issued  a  notice  for  a  district  meeting, 
which  was  served  by  a  taxable  inhabitant  in  the  manner  prescrib- 
ed by  law,  when  a  district  is  formed  ;  the  meeting  was  held  accord- 
ingly, and  new  officers  were  elected.  On  this  statement  of  facts 
it  seems  to  me,  that  three  questions  only  can  arise — 1st.  Was  a 
verbal  resignation  sufficient?  I  am  of  the  opinion  that  it  was. 
It  is  undoubtedly  desirable  in  all  cases,  that  resignations  should 
be  in  writing,  in  order  that  any  dispute  as  to  the  tender  of  the 
resignation,  may  be  settled  by  a  reference  to  the  document  it- 
self. But  the  statute  does  not  require  that  it  shall  be  in  writing, 
and  it  is  therefore  sufficient  if  it  be  verbally  tendered.  2nd.  Was 
the  service  of  the  notice  on  the  town  clerk,  a  sufficient  compli- 
ance with  section  73  of  the  Revised  Statutes,  relating  to  common 
schools  ?  I  think  it  was.  The  trustees  and  clerk  had  all  re- 
signed. There  was  no  person  in  office,  on  whom  the  notice 
'»  could  be  served,  in  strict  conformity  to  the  provisions  of  the  sec- 
tion referred  to.     The  justices  of  the  peace  were  justified  by  the 


SUPERTNTENDfENT    OF    COMMON    SCHOOLS.  113 

necessity  of  the  case,  in  giving  the  notice  to  the  town  clerk,  who 
was  certainly  the  most  proper  p«-son  to  receive  it,  as  will  appear 
from  my  answer  to  the  next  and  last  question.  3d.  Had  the 
commis^oners  of  common  schools  of  the  town  authority  to  call  a 
meeting  for  the  purpose  of  electing  officers  to  fill  the  vacancies 
in  question?  I  think  they  had.  Section  57  of  the  common 
school  act,  -provides,  t-hat  in  case  a  school  district  shall  be  dis- 
solved, after  having  been  formed  and  organized,  "so  that  no 
competent  authority  shall  exist  therein  to  call  a  special  district 
meeting,"  &c.  the  commissioners  shall  proceed  to  give  the  notice 
required  in  forming  a  new  district.  Alti)ough  the  resignation  or 
death  of  all  the  officers  of  a  district,  who  jfiave  any  agency  in 
calling  special  meetings  may  not  absolutely  dissolve  the  district, 
it  is  a  case  in  which  there  is  no  competent  authority  existing  in 
the  district  to  call  a  meeting,  it  may,  therefore,  be  fairly  con- 
sidered as  coming  within  the  section  last  referred  to,  and  warrants 
the  interposition  of  the  commissioners :  Hence  the  propriety  of 
the  service  of  the  notice  by  the  justices  of  the  peace  on  the  clerk 
of  the  commissioners.  The  new  district  officers  should  go  on 
with  the  performance  of  their  duties,  if  ttie  above  are  the  only 
questions  raised  in  the  matter  of  their  election. 

The  Trustees  of  school  district  No.  5  in  the  town  of 
Blenheim,  ex  parte. 

The  only  three  legal  modes  of  providing  fuel  e:xplained. 

In  district  No.  5  in  the  town  of  Blenlieim,  it  had  been  custo- 
mary at  the  annual  meeting  to  give  a  contract  for  the  wood  to 
be  furnished  for  the  winter  school  to  the  lowest  bidder  per  cord, 
and  a  vote  was  then  taken  that  the  amount,  when  ascertained, 
should  be  paid  by  those  who  sent  children  to  school.  In  the 
case,  wliich  gave  rise  to  this  application  to  the  Superintendent, 
one  or  two  individnals  refused  to  |)ay  for  their  proportion  of  the 
wood  so  furnished. 

By  John  A.  Dix,  May  24, 1833.  There  are  but  three  legal 
modes  of  providing  fuel  for  the  tise  of  a  school  district :  1st.  To 
lay  a  tax  for  purchasing  it.  2d.  To  require  the  inhabitants 
sending  children  to  school  to  furnish  tlieir  just  proportion  ;  and 
3d.  If  they  refuse  on  notice  to  provide  it,  the  tiiistees  may  fur- 
nish it  and  charge  the  persons  in  default  with  the  amount.  None 
of  these  modes  have  been  adopted  in  the  case  stated  to  me ;  but 
the  inhabitants  of  the  district  have  agreed  to  pay  for  it,  by  an 
informal  assessment  on  those  who  send  children  to  school,  the 
wood  being  furnished  by  the  person  who  would  engage  to  pro- 
vide it  at  the  lowest  price.  To  this  mode  there  is  no  objection, 
so  long  as  all  acquiesce  in  it  and  pay  voluntarily.     But  if  any 

8 


114        -  .»».toaH  jgases  decided  by  the    -  .- 

peison  concerned  refuses  to  abide  by  the  arrangi&meril,  the  diffi- 
culty cannot  be  adjusted  by  a  recurrence  to  the  provisions  of  the 
law,  which  you  will  perceive  affords  no  remedy  in  such  a  case. 
There  is  no  authority  to  enforce  the  collection  of  a  tax  or  assess- 
ment not  imposed  in  the  prescribed  modes. 

The  clerk  of  school  district  No.  24  in  the  town  of 
New-Paltz,  ex  parte, 

A  tax  to  pay  the  rent  of  a  schooNroom  cannot  be  assessed  on  those  who  send 

children  to  school. 
If  trBstees  hire  a  room  without  being  authorized  by  a  vote  of  the  district,  they 
(  are  personally  responsible  for  the  rent. 

In  school  district  No.  24  in  the  town  of  New-Paltz,  a  tax  had 
been  voted  for  several  successive  years  to  pay  the  rent  of  a  school- 
room, (the  district  being  destitute  of  a  school-house,)  and  paid 
voluntarily  by  the  persons  who  sent  children  to  school.  In  the 
case  which  gave  rise  to  this  application  the  usual  vote  had  not 
been  passed,  but  the  trustees  engaged  a  roon^  and  employed  a 
teacher  in  pursuance  of  the  customary  practice. 

By  John  A.  Dix,  July  8,  1833.  The  law  intends,  where  a 
school  district  is  destitute  of  a  school-bouse,  that  the  rent  of  a 
house  or  room  shall  be  paid  by  means  of  a  tax  assessed  upon  the 
property  of  the  district.  This  cannot  be  done,  however,  unless 
the  tax  is  voted  by  the  taxable  inhabitants.  Nor  can  the 
amount  of  the  rent  be  assessed  and  levied  exclusively  upon  those 
who  send  children  to  school.  They  may,  if  they  please,  pay  it 
by  voluntary  contribution,  but  it  is  not  in  the  pow^er  of  the  inha- 
bitants of  the  district  to  annex  such  a  condition  to  a  tax.  if  the 
trustees  hire  a  house  or  room  without  being  authorized  so  to  do 
by  a  vote  of  the  district,  they  will  be  personally  responsible  for 
the  rent,  although  it  would  be  exceedingly  illiberal  on  the  part 
of  the  district,  under  the  circumstances,  to  refuse  to  provide  the 
means  of  paying  it,  if  the  house  or  room  was  hired  in  good  faith 
and  actually  occupied  as  a  school-house. 

The  inhabitants  of  school  district  No.  7  in  the  town 
of  Freetown,  against  the  Commissioners  of  Com- 
mon Schools  of  said  town. 

If  the  annual  meeting  is  void,  the  persons  in  office  hold  over;  but  the  commis- 
sioners of  common  schools  cannot,  in  such  a  case,  call  a  meeting  or  appoint 
officers. 

The  facts  which  gave  rise  to  this  appeal  are  given  in  the  Su- 
j>erinten dent's  decision. 
By  John  A.  Dix,  July  10,  1833.    On  examination  of  the  ap- 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  115 

peal  of  certain  inhabitants  of  scbiool  district  No.  7  in  Freetown, 
it  appears  that  at  the  time  fixed  for  the  last  annual  election,  only 
two  of  the  inhabitants  of  said  district  appeared,  and  that  they  pro- 
ceeded to  appoint  district  officers.  Subsequently  on  the  30th  April, 
1833,  the  commissioners  of  common  schools  of  Freetown,  on  the 
application  of  some  of  the  inhabitants  of  the  district,  issued  a  no- 
tice for  a  meeting  for  the  purpose  of  electing  district  officers,  there- 
by assuming  the  proceedings  of  the  annual  meeting  at  which  only 
two  persons  were  present,  to  be  void.  On  further  examination, 
and  before  the  time  for  holding  the  meeting  appointed  by  them, 
the  said  commissioners  issued  an  order  appointing  two  individu- 
als to  district  offices,  which  had  become  vacant,  and  which  the 
district  had  neglected  to  fill,  thereby  acknowledging  the  legality 
of  the  proceedings  of  the  annual  meeting  and  virtually  annulling 
their  notice  for  holding  another.  The  proceedings  of  the  com- 
missioners are  irregular  and  cannot  be  sanctioned.  They  had 
no  authority  to  issue  an  order  or  notice  for  an  election  of  district 
officers.  After  a  district  has  been  organized,  and  has  not  been 
dissolved,  and  so  long  as  there  is  any  competent  authority  with- 
in to  call  special  meetings,  elections  must  take  place  at  the  an- 
nual meetings  of  the  inhabitants,  at  special  meetings  called  to 
till  vacanciCvS,  or  at  a  meeting  ordered  by  the  Superintendent  of 
common  schools.  In  this  case  the  district  had  not  been  dissolv- 
ed. If,  therefore,  the  proceedings  of  the  first  meeting  were  valid, 
the  officers  chosen  by  the  persons  there  present,  were  the  lawful 
officers  of  the  district.  If  the  proceedings  of  that  meeting  were 
not  valid  in  consequence  of  the  neglect  of  a  sufficient  number  of 
the  inhabitants  to  assemble,  then  the  persons  in  office  would  hold 
over  till  the  next  annual  meeting.  In  either  case  the  commis- 
sioners had  no  power  to  call  a  meeting  for  the  election  of  distritt 
officers. 

Tlie  Superintendent  does  not  deem  it  necessary  or  proper  to 
say  what  number  of  the  inhabitants  of  a  school  district,  assem- 
bled in  pursuance  of  a  notice  regularly  given,  at  the  time  and 
place  fixed  for  the  annual  meeting,  shall  be  sufficient  to  render 
legal  an  election  of  districfofficers.  Every  such  case  will  be  de- 
termined upon  an  examination  of  the  attending  circumstances. 
But  if  the  inhabitants  of  a  school  district  take  so  httle  interest  in 
its  concerns  as  to  neglect  to  attend  their  annual  meeting  at  the 
proper  time  and  place,  they  can  have  no  just  cause  to  complain 
if  they  find  district  officers  imposed  on  them  by  a  very  few 
votes. 

In  consideration,  however,  of  all  the  facts  of  this  case,  it  is 
hereby  ordered,  that  the  trustees  of  school  district  No.  7  in  Free- 
town, who  were  in  office  previous  to  the  last  annual  meeting, 
which  was  attended  by  only  two  of  the  inhabitants,  do  immedi- 


116  .  juvi,   CASES    DECIDED    BY   THE 

ately  give  notice,  in  the  manner  required  by  the  56th  section  of 
the  Revised  Statutes  relating  to  common  schools,  to  all  the  tax- 
able inhabitants  of  said  district,  to  meet  at  a  certain  time  and 
place,  which  shall  be  specified  in  said  notice.  When  the  inha- 
bitants, or  such  of  them  as  may  attend,  shall  be  assembled,  they 
will  proceed  to  elect  officers  for  the  district,  who  will  serve  until 
their  next  annual  meeting.  Immediately  after  such  election 
shall  have  been  made,  the  time  and  place  for  holding  the  next 
annual  meeting  will  be  fixed. 

The  Trustees  of  school  district  No.  5  in  the  town  of 
Ripley,  ex  parte. 

After  a  lapse  of  months  proceedings  will  not  be  disturbed  on  a  mere  allegatioa 

of  irregularity. 

i,  School  district  No.  5  in  the  town  of  Ripley,  having  become 
disorganized,  and  no  competent  authority  existing  therein  to  call 
a  meeting  of  the  inhabitants,  the  commissioners  of  common 
schools  prepared  a  notice  appointing  time  and  place  for  a  district 
meeting,  and  delivered  it  to  one  of  the  taxable  inhabitants,  who 
served  it  on  the  others.  The  meeting  was  held  in  pursuance  of 
the  notice,  district  officers  chosen,  and  a  tax  voted  to  build  a 
new  school-house,  the  old  one  having  become  dilapidated.  The 
construction  of  the  school-house  was  immediately  commenced, 
and  the  tax  was  assessed ;  but  objections  having  been  raised  by 
some  of  the  inhabitants  to  the  regularity  of  the  proceedings  of 
the  commissioners,  the  trustees,  with  the  hope  that  the  opposi- 
tion would  ere  long  be  abandoned,  neglected  to  issue  a  warrant 
for  the  collection  of  the  tax.  The  exception  taken  to  the  pro- 
ceedings of  the  commissioners  was,  that  their  notice  did  not  con- 
tain a  complete  description  of  the  boundaries  of  district  No.  6, 
but  merely  referred  to  them  as  before  established  and  described 
in  the  town  records.  Under  these  circumstances,  and  after  the 
lapse  of  several  months,  the  direction  of  the  Superintendent  was 
solicited  by  the  trustees. 

By  John  A.  Dix,  August  1,  1833.  If  all  the  inhabitants  of 
your  school  district  received  proper  notice  of  the  meeting  called 
by  the  commissioners,  I  will  not  allow  a  mere  irregularity  in 
the  form  of  the  notice  to  vitiate  the  subsequent  proceedings. 
Where  an  irregularity  occurs  in  the  proceedings  of  school  officers, 
exception  should  be  taken  to  them  by  appeal  within  thirty  days. 
But  if  the  defect  is  not  taken  advantage  of,  a  party  cannot  be 
permitted  to  come  in  after  a  lapse  of  months  and  object  to  pro- 
ceedings on  account  of  a  mere  irregularity.  If  the  commissioners 
had  acted  wholly  without  authority,  the  ceise  would  be  different; 
but  as  they  had  full  power  to  act,  and  as  the  district  has  been 


SUPERINTENDENT    OF    COMMON   SCHOOLS.  117 

regularly  organized,  a  tax  voted,  and  the  construction  of  a 
school-house  commenced,  and  no  exception  taken  to  the  pro- 
ceedings by  the  parties  concerned  within  the  time  limited  by  re- 
gulation, I  will  not  allow  the  district  to  be  disturbed  by  inquir- 
ing into  the  correctness  of  those  proceedings  upon  a  bare  allega- 
tion of  irregularity.  If  the  inhabitants,  or  any  part  of  them,  re- 
fuse to  pay  on  demand  their  portion  of  the  tax  voted  for  erecting 
the  school-house,  I  will,  on  application,  grant  an  order  authoriz- 
ing the  amount  due  to  be  collected,  unless  cause  to  the  contrary 
shall  be  shown.  In  case  of  such  an  application,  it  will  be  pro- 
per to  notify  the  persons  who  refuse  to  pay.* 

The  Trustees  of  school  district  No.  12  in  the  town 
of  Williamson,  ex  parte. 

Taxes  ought  to  be  assessed  within  the  time  prescribed  by  law.  But  quere? 
Whether  trustees  may  not  assess  them  after  the  expiration  of  the  time? 

If  the  inhabitants  of  a  district  direct  a  tax  to  be  collected  in  a  mode  not  recog- 
nized by  law,  and  the  trustees  execute  such  direction,  the  Superintendent 
will  not  interfere.  I 

In  the  year  1833  a  tax  was  voted  in  school  district  No.  12  iia 
the  town  of  Williamson,  to  build  a  school-house.  For  the  pur- 
pose of  saving  the  collector'^s  fees  it  was  agreed,  at  the  same  time, 
that  the  trustees  should  not  make  out  a  formal  tax-list,  but  that 
each  individual  should  pay  the  amount  due  from  him  into  their 
hands,  when  the  money  should  be  required  for  constructing  the 
house.  It  was,  however,  understoood  that  in  case  any  one  re- 
fused to  pay,  a  warrant  should  be  made  out,  and  the  collection 
of  his  portion  of  the  tax  enforced  against  him.  All  the  inhabi- 
tants paid  their  proportion  of  the  tax  voluntarily,  excepting  A.  H. 
who  repeatedly  promised  to  pay,  but  after  the  lapse  of  a  year  re- 
fused to  do  so.  In  this  state  of  things  the  trustees  applied  to  the 
Superintendent  for  his  direction. 

By  John  A.  Dix,  August  1,  1833.  The  Revised  Statute  re- 
lating to  common  schools,  provides,  that  every  district  tax  shall  be 
assessed  and  the  tax-list  thereof  be  made  out  by  the  trustees  with- 
in one  month  after  the  tax  shall  have  been  voted  ;  a  warrant 
directed  to  the  collector  must  also  be  annexed  thereto,  and  the  col- 
lector must  make  his  return  within  a  certain  time.  If  all  this  be 
not  done  within  the  time  hmited,  the  tax  should  be  voted  anew. 
Property  in  school  districts  is  frequently  changing  hands,  and  a 
tax  levied  for  the  benefit  of  a  district  should  be  paid  by  those  who 

•  If  the  circumstances  under  which  the  decision  of  the  supreme  court  in  the 
case  of  Ring  vs.  Grout,  (see  page  18,  note,)  are  correctly  apprehended,  the  case 
abore  reported  is  identical  with  it.  That  the  pri'nciple  of  the  decision  of  the  su- 
preme court  is  applicable  to  this  case  there  can  be  no  doubt. 


h 

118  CASES   DECIDED    BY    THE 

vote  it.  If  trustees  may  defer  making  out  an  assessment  more 
than  a  month,  they  may  for  a  year,  and  purchasers  may  fre- 
quently iiud  themselves  burdened  with  a  tax  in  laying  which 
they  had  no  voice,  and  from  which  they  can  derive  no  benefit, 
as  in  the  case  of  a  sum  raised  to  pay  for  fuel,  which  has  been 
consumed.  The  directions  of  the  statute  ought,  therefore,  to  be 
strictly  pursued,  and  no  agreement  among  the  inhabitants  can 
have  the  effect  of  superseding  those  directions  even  with  the  assent 
of  all  the  individuals  affected  by  such  agreement.  If  A.  H.  pro- 
mised to  pay  his  portion  of  the  tax,  and  the  trustees  relied  on 
his  promise  instead  of  enforcing  the  collection  of  the  tax  in  the 
manner  prescribed  by  law,  it  is  at  their  peril,  or  at  the  peril  of 
the  district,  if  the  understanding  was  that  the  collection  might 
he  defened  beyond  the  time  limited,  and  made  in  a  mode  not  re- 
cognized by  the  statute.  The  parties  have  undertaken  in  this  case 
to  set  aside  the  requirements  of  the  law  altogether.  They  have 
done  so  for  the  purpose  of  avoiding  the  payment  of  the  collector's 
fees,  and  the  matter  must  now  be  arranged  among  themselves. 
The  authority  of  the  trustees  to  make  out  a  tax-list  after  the  lapse 
of  a  month,  may  not,  in  strict  construction  of  law,  be  vacated  by 
their  neglect  to  do  it  within  that  time.  The  general  rule  is,  that 
"  where  a  statute  specifies  the  time  within  which  a  public  officer 
is  to  perform  an  official  act  regarding  the  rights  and  duties  of 
others,  it  will  be  considered  as  directory  merely,  unless  the  na- 
ture of  the  act  to  be  performed,  or  the  language  used  by  the  le- 
gislature shows  that  the  designation  of  the  time  was  intended  as 
a  limitation  of  the  power  of  the  officer."  6  Wendell,  page  487. 
Neither  the  nature  of  the  act  to  be  performed,  nor  the  language 
of  the  law  in  respect  to  the  assessment  of  taxes  in  school  districts, 
may  be  such  as  to  render  it  an  exception  to  the  general  rule ; 
but  when  it  is  considered  that  the  remedy  in  enforcing  the  col- 
lection of  such  taxes,  is  solely  against  the  personal  property  of 
the  individuals  on  whom  they  are  assessed,  that  it  does  not  reach 
the  real  estate  lying  in  the  district,  and  that  "the  taxable  inha- 
bitants residing  in  the  district  at  the  time  of  making  out  the  tax- 
list,"  are  the  only  persons  who  can  be  included  in  it,  certainly 
every  principle  of  equity  demands  that  there  shall  be  no  delay  in 
enforcing  the  collection.  But  independently  of  any  considera- 
tion affecting  the  right  of  trustees  to  make  out  a  tax-list  after  the 
time  prescribed,  there  are  difficulties  in  this  case  which  are,  in 
the  opinion  of  the  Superintendent,  insuperable.  If  the  trustees 
were  to  be  authorized  to  make  out  a  tax-list  now,  they  would  be 
compelled  to  assess  the  whole  tax  upon  "  all  the  taxable  inhabi- 
tants residing  in  the  district  at  the  time  of  making  out  the  list," 
and  they  must,  of  course,  add  five  per  cent  for  collector's  fees  on 
the  whole  amount.     They  might,  in  their  direction  to  the  collec- 


SUPERIMTENDENT    OF    COMMON    SCHOOLS.  119 

tor^  give  credit  to  all  the  inhabitants  who  have  paid,  and  thus, 
in  effect,  make  the  warrant  applicable  to  A,  H.  alone,  he  being 
the  only  delinquent.  But  after  having  deprived  the  collector  of 
his  fees  on  the  greater  part  of  the  tax,  it  would  be  unjust  to  him 
to  require  him  to  collect  a  small  balance.  The  Superintendent 
lias  decided  that  the  vote  of  a  district  meeting  reducing  the  fees 
of  the  collector  has  no  validity ;  that  the  law  fixes  his  fees  at  five 
per  cent  on  each  dollar  collected  and  paid  over  by  him,  and  that 
this  provision  cannot  be  affected  by  the  vote  of  a  district  meeting. 
He  has  also  decided  that  trustees  have  no  authority  to  rtceive 
taxes  from  individuals,  and  thus  deprive  the  collector  of  the  fees 
to  which  he  is  entitled.*  To  allow  a  warrant  to  issue  for  the  pur- 
pose of  collecting  the  amount  due  from  A.  H.  would  indirectly 
sanction  a  practice  which  has  been  uniformly  condemned,  and 
would  give  countenance  to  a  laxity  of  proceeding,  which  is  a 
perpetual  source  of  embarrassment  and  controversy.  Under  all 
the  circumstances  of  this  case,  therefore,  the  Superintendent 
deems  it  most  proper  not  to  interfere ;  and  it  is  submitted  to  the 
inhabitants  of  the  district  whether  they  had  not  better  make  up 
the  deficiency  out  of  their  own  pockets,  and  learn  from  it  the  les- 
son that  it  is  aKvays  most  safe  to  pursue  the  course  pointed  out 
by  the  law  instead  of  attempting  to  set  aside  its  requirements. 
The  absence  of  a  legal  remedy  against  A.  H.  constitutes  no  jus- 
tification of  his  conduct.  He  who  will  avail  himself  of  a  techni- 
cal advantage  to  violate  his  repeated  promises  and  evade  his  pro- 
per share  of  a  burden  so  essential  to  the  well  being  of  his  neigh- 
borhood as  the  support  of  the  district  school,  willlDe  likely  to  lose 
in  character  much  more  than  he  will  gain  in  pecuniary  benefit. 

The  inhabitants  of  school  district  No. in  the 

town  of  Cairo,  ex  parte, 

?Jb  child  residing  in  a  school  district  can  be  excluded  from  the  school  on  account 

of  the  inability  of  the  parent  to  pay  his  tuition. 
Select  schools  cannot  be  kept  in  district  school-houses. 

This  was  a  case  in  which  the  trustees  of  a  school  district  au- 
thorized a  teacher  to  open  a  select  school  in  the  district  school- 
house,  giving  notice  that  no  child  would  be  admitted  unless  his 
parent  or  guardian  became  a  subscriber  at  a  stipulated  price  for 
♦iach  scholar. 

By  John  A.  Dix,  August  13, 1833.  The  trustees  of  a  school 
district  are  by  the  statute  charged  with  "the  custody  and  safe 
keeping  of  the  district  school-hoiise ;"  but  they  are  not  to  em- 
ploy it  for  any  other  uses  than  such  as  conduce  to  the  benefit  of 


*  See  the  case  of  Isaac  Sherman,  collector  of  school  district  No.  4  in  the  town 
of  Spencer,  against  the  trustees  of  said  district,  page  54. 


120  ^a  .JM  -CASES    DECIDED    BY    THE 

the  district.  The  school-house  is  provided  by  a  tax  upon  the  dis- 
trict, and  it  should  not  be  used  for  private  purposes.  If  a  schoolr 
is  opened  in  it,  every  inhabitant  of  the  district  is  entitled  to  send 
his  children  to  it,  for  which  privilege  he  must  pay  his  proportion 
of  the  teacher's  wages.  No  child  residing  ini  the  district  can  be 
excluded  from  it  on  account  of  the  inabiUty  ef  the  parent  to  pay 
for  his  tuition.  Every  school  which  is  opened  in  a  district  school- 
house  is  to  be  considered  as  a  public  school,,  so  far  as  the  right  of 
the  inhabitants  to  send  to  it  is  concerned ;  and  this  right  cannot 
be  impaired  by  the  manner  in  which  the  school  has  been  got 
up.  Select  schools  shoiild  not  be  kept  in  district  school-houses. 
The  teachers  of  such  schools  can,  of  course^  receive  none  of  tlie 
public  money.  If  tlie  practices  alluded  to  m  your  letter  prevail 
in  your  district,  I  will  on  complaint  to  me,  with  notice  to  the- 
trustees,  make  an  order  directing  them  tabe  discontinued. 

The  Trustees  of  school  district  No. in  the  town: 

of  Hornellsville,  ex  parte. 

Certificates  of  qualification  given  after  the  commencement  of  a  term,  are  gooet 

in  some  cases. 
The  inspection  of  a  teacher  after  the  dose  of  a  term,  with  a  view  to  enable 

him  to  receive  the  public  money,  is  inadmissible,  excepting  under  extiMidtjr 

nary  circumstances. 

This  was  an  application  for  tlie  opinion  of  the  Superintendent 
in  a  case  where  the  trustees  of  a  school  district  employed  a  fe- 
male teacher  who  had  received  certificates  of  quahfication  from 
the  inspectors  of  two  different  towns  during  the  tw'o  preceding 
years,  neither  of  which  certificates,  however,  were  dated  within 
a  year  from  the  time  when  she  commenced  her  school.  Before 
the  close  of  the  term,  she  applied  to  the  inspectors  fw  an  exami- 
nation, which  they  refused  to  grant,  upon  the  ground  that  she 
was  not  a  qualified  teacher  at  the  commencement  of  the  term, 
and  that  they  could  not  render  her  so  by  giving  her  a  certificate 
then. 

By  John  A.  Dix,  September  14,  1833.  Teachers  of  com- 
mon schools  should,  at  the  time  they  are  engaged,  hold  a  certifi- 
cate of  qualification,  dated  within  a  year,  from  the  inspectors  of 
common  schools  of  the  town  in  which  they  are  employed.  In 
extraordi»ary  cases  (and  I  consider  the  case  stated  by  you  to 
be  such  a  one,)  certificates  have  been  given  and  accepted  a? 
sufficient,  though  dated  subsequently  to  the  commencement  of 
,  the  terra.  The  inspectors  were  in  duty  bound  to  inspect  the 
teacher,  and  to  give  her  a  certificate  dated  on  the  day  of  her 
examination,  leaving  the  sufficiency  of  the  certificate  for  any  pur- 
pose to  be  determined  by  the  proper  authority.  Trustees  are  in- 
excusable for  aegleoting  to  ascertain  when  they  employ  a  teacher 


SUPERINTENBENT    OF    COMMON   SCHOOLS.  121 

that  he  or  she  holds  a  sufficient  certificate ;  but  at  the  same  lime, 
if  the  teacher  is  quahfied  excepting  in  the  mere  form  of  holding 
a  certificate  dated  previous  to  the  commencement  of  the  term,  I 
should  deem  it  my  duty  on  appeal  to  protect  the  rights  of  the 
teacher  and  the  district,  by  giving  effect,  so  far  as  may  be  done 
with  propriety,  to  a  certificate  dated  subsequently  to  the  com- 
mencement of  the  term..  But  I  should  not  consider  it  proper  to 
treat  a  teacher  as  qualified,  according  to  the  intention  of  the 
law,  who  had  not  obtained  a  certificate  till  after  the  expiration 
of  the  term,  imless  the  inspectors,  as  in  this  case,  had  refused 
to  examine  him  or  her  on  apphcation  to  them  for  that  purpose, 
or  unless  some  overruling  necessity  had  prevented  a  compliance 
with  the  conditions  of  the  law. 

(anonymous-.) 
Teacher  may  dismiss  his  sdiool  on  Saturday  afternoon. 

By  John  A.  Dix,  September  18,  1833.  In  reply  to  the  que- 
ries contained  in  the  statement  left  at  my  office  some  weeks  ago. 
I  now  proceed  to  give  the  required  information. 

1st.  If  a  teacher  is  employed  by  the  week,  he  is  bound  to 
keep  his  school  open  from  Monday  morning  until  Saturday  noon. 
He  is  not  bound  to  keep  school  on  Saturday  afternoon,  unless  he 
has  expressly  agreed  so  to  do. 

2d.  A  teacher  has  a  right  to  dismiss  his  school  on  Saturday 
afternoon  under  a  contract  to  teach  by  the  month  or  week,  and 
still  he  is  to  receive  credit  for  an  entire  day,  unless  by  the  terms 
of  the  contract  he  has  engaged  to  teach  on  Saturday  afternoon. 
There  is  no  inconsistency  in  decision  81  of  the  Superintendent 
of  Common  Schools,  published  with  the  common  school  law.* 
"If  the  school  is  dismissed  on  the  afternoon  of  Saturday,  the 
teacher  is  not  required  to  make  up  the  time  after  the  expiration 
of  his  month."  In  other  words,  he  may  dismiss  his  school  on 
Saturday  afternoon,  and  yet  each  Saturday  is  to  be  reckoned  as 
a  whole  day  in  making  up  the  twenty-six  days  which  constitute 
the  month.  "  If  he  keeps  the  whole  day,  he  does  not  gain  time 
thereby,  but  must  continue  his  school  until  the  month  is  fully 
ended."  That  is,  although  he  has  a  right  to  dismiss  his  school 
on  Saturday  afternoon,  yet  if  he  does  not  choose  to  do  so,  Sa- 
turday is  still  to  be  reckoned  as  one  day,  precisely  in  the  same 
manner  as  if  he  had  dismissed  his  school  for  the  afternoon. 
This  rule  does  not  conflict  at  all  with  that  part  of  the  decision 
which  declares  26  days  to  be  a  school  month.  A  quarter  of  26 
days  is  a  quarter  of  a  school  month,  but  a  quarter  of  a  month  is 

•  See  a  caee  decided  January  20,,  1830,  by  A.  C,^lagg,  page  57, 


ISS  *JOow^Cases  decided  by  the         '^' 

not  a  week.  A  ^eek  is  not  a  component  pari  of^a'  calendar 
month,  vvliich  is  computed  altoj^ether  by  days.  Where  a  teacher 
contracts  to  teach  a  school  for  one  mon(h,  he  is  to  keep  his  school 
open  26  days,  with  the  exception  that  it  may  be  dismissed  on  Sa- 
turday afternoon,  and  yet  he  will  receive  credit  for  a  whole  day. 
'  3d.  The  right  to  dismiss  a  school  on  Saturday  afternoon  re- 
sides with  the  teacher.  It  depends,  however,  wholly  upon  usage, 
and  the  trustees  of  a  school  district  may  entirely  control  it  by  in- 
serting in  their  contract  with  the  teacher,  a  provision  which 
shall  make  it  obligatory  on  him  to  teach  during  the  whole  day 
on  Saturday.  Such  a  provision  I  should  consider  unwise.  If 
children  study  diligently  during  five  days  and  a  half  in  the 
week,  they  ought  to  be  allowed  half  a  day  for  amusement  and 
recreation. 

The  Commissioners  of  Common  Schools  of  the  town 
,  of  Marbletown,  ex  parte. 

Where  a  riew  district  is  formed,  and  the  trustees  of  the  district  from  which  it  is 
taken  do  not  consent  to  the  alteration,  no  act  can  be  done  in  pursuance  of  it 
until  three  months  after  notice. 

In  the  spring  of  1832  the  commissioners  of  common  schools 
of  the  town  of  Marbletown  formed  a  new  school  district,  by  the 
consolidation  of  two  existing  districts,  and  prepared  a  notice  for 
a  district  meeting  within  20  days,  and  delivered  it  to  a  taxable 
inhabitant.  The  trustees  of  neither  district  consented  to  the 
consolidation,  but  notice  in  writing  was  given  to  them.  A  meet- 
ing was  held,  in  pursuance  of  the  notice  given  by  the  commis- 
sioners for  the  purpose,  and  the  district  was  organized  by  ap- 
pointing officers.  In  the  fall  of  1832,  in  consequence  of  some 
objections  to  the  former  proceedings,  the  commissioners  issued  a 
second  notice  for  a  district  meeting,  which  was  held  accordingly, 
and  another  set  of  officers  elected.  The  question  submitted  to 
the  Superintendent  was,  which  set  of  officers  was  legally  chosen. 

By  John  A.  Pix,  September  18,  1833.  It  has  always  been 
held  by  the  Superintendent  of  Common  Schools  that  no  act 
could  be  legally  done  towards  the  organization  of  a  new  school 
district,  by  the  inhabitants  thereof,  (uliless  the  consent  of  the  trus- 
tees of  the  district  or  districts  from  which  it  was  taken  had  been 
obtained,)  until  three  months  after  service  of  a  notice  in  writing 
upn  the  latter.  The  reasoning  upon  which  the  rule  is  founded 
is  this.  The  law  provides  that  no  alteration  in  a  school  district, 
made  without  the  con.sent  of  the  trustees,  shall  take  effect  until 
after  three  months,  &c.  No  competent  authority,  therefore,  can 
exist  in  a  new  district  to  hold  meetings  and  elect  officers  until 
after  the  three,  months  have  expired.     The  commisFitoners  of 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  123 

common  schools,  after  forming  a  school  district  ipust  issue  a 
notice  within  twenty  days  describing  the  district  and  appointing 
time  and  place  for  the  first  district  meeting.  But,  unless  the  con- 
sent of  the  trustees  of  the  district  out  of  which  the  new  one  was 
formed  has  been  obtained,  the  time  appointed  for  holding  the 
meeting  ought  not  to  be  within  three  months  from  the  time  of 
serving  notice  of  the  alteration  upon  them. 

Although  the  warrant  for  holding  an  election,  (i.  e.  a  notice 
for  the  first  district  meeting,)  was  issued  within  20  days  after  the 
formation  of  the  district,  it  does  not  appear  whether  the  election 
was  appointed  on  a  day  within  three  months  from  the  time  of 
serving  a  written  notice  on  the  trustees  of  the  two  districts  af 
fected  by  the  consolidation. 

If  the  first  election  was  held  after  the  expiration  of  three 
months  from  service  of  such  notice,  it  was  valid  and  the  second 
election  was  void. 

Joseph  Allen  and  others,  against  the  inhabitants  of 
school  district  No.  11  in  the  town  of  Oppenheim. 

V 

An  error  being  shown  in  counting  the  votes  at  a  district  meeting,  for  a  tax  fo 
building  a  school-house,  a  new  meeting  will  be  ordered. 

The  facts  of  this  case  are  given  in  the  Superintendent's  order. 

By  John  A.  Dix,  SejHember  20,  1833.  On  examination 
of  the  appeal  of  certain  inhabitants  of  school  district  No.  11  in 
the  town  of  Oppenheim,  from  the  proceedings  of  a  district  meet- 
ing held  on  the  15th  July  last,  it  appears  that  a  vote  was  taken 
to  build  a  new  school- house,  and  was  declared  by  the  moderator 
to  be  carried.  The  moderator  swears  to  these  facts,  and  adds, 
that  he  kept  minutes  on  paper  of  the  votes  taken  at  the  meeting, 
and  that,  from  an  examination  of  said  minutes  afterwards  as 
well  as  from  other  circumstances,  he  is  satisfied  there  was  an 
error  in  his  decision  ;  that  there  was  an  equal  number  of  votes 
for  and  against  building  a  new  house,  although  he  supposed 
when  he  announced  the  vote  that  there  was  a  majority  of  one 
in  favor  of  it.  -  t  .        , 

Without  regard  to  any  other  testimony  this  alone  is  suflficient, 
in  the  opinion  of  the  Superintendent,  to  require  that  the  question 
should  be  again  submitted  to  the  district.  In  the  adoption  of  a 
measure  so  important  to  a  school  district  as  that  of  building  a 
stchool-house  nothing  should  be  left  to  uncertainty.  The  opinion 
of  the  parties  should  be  so  clearly  expressed  that  it  cannot  be 
drawn  into  dispute  and  thus  made  a  source  of  controversy. 

It  is  therefore  ordered,  that  the  proceedings  of  the  meeting- 
held  in  district  No.  11,  on  the  15th  July  be  set  aside,  and  that 
the  question  of  building  a  new  school-house  be  submitted  (o  a 


124  CASES   DECIDED   BY    THE 

meeting  of  the  taxable  inhabitants  of  the  district,  to  be  called  foff 
that  purpose  at  an  early  day  by  the  trustees. 

Amos  Haskins,  against  the  Trustees  of  school  district 
H  No.  5  in  the  town  of  Ripley. 

Trustees  have  no  right  to  include  in  a  rate  bill  a  sum  of  money  to  procure  pre- 
miums for  scholars;  nor  can  a  tax  be  laid  for  the  purpose. 

This  was  a  case  in  which  a  sum  of  money  to  procure  pre^ 
miums  for  the  most  meritorious  scholars  was  included  in  a  rate 
bill  for  the  teacher's  wages^  made  out  by  the  trustees  in  pursu- 
ance of  a  vote  of  the  inhabitants  of  the  district. 

By  John  A.  Dix,  September  20,  1835..  The  trustees  had 
no  right  to  include  in  the  rate  bill  a  sum  of  money  for  the  pur- 
pose of  giving  premiums  to  the  scholars,  whether  directed  so  to 
do  or  not  by  the  inhabitants  of  the  district.  The  inhabitants  of 
the  district  had  no  right  to  give  such  a  direction  or  to  lay  a  tax 
for  the  purpose.  The  objects  for  which  a  tax  may  be  laid  by 
the  inhabitants  of  school  districts  are  specified  by  law,  and  a  tax 
cannot,  therefore,  be  lawfully  voted  for  any  other  purpose  what- 
ever. 

The  Commissioners  of  Common  Schools  of  the  town 
of  Edmeston,  ex  parte. 

The  school  fund  of  Edmeston  must  be  applied  exclusively  for  the  benefit  of 
the  common  schools  of  the  town. 

This  was  an  application  for  the  opinion  of  the  Superintendent 
as  to  the  propriety  of  applying  the  moneys  derived  from  the  Ed- 
meston school  fund  for  the  indiscriminate  benefit  of  all  the  children 
attending  school  in  a  joint  district  lying  partly  in  the  town  of 
Edmeston  and  partly  in  the  town  of  Plainfield;  or  whether 
it  should  be  applied  exclusively  for  the  benefit  of  such  children 
attending  school  in  said  joint  district  as  resided  within  the  town 
of  Edmeston. 

By  John  A.  Dix,  September  21,  1833.  The  sixth  section 
of  the  act  of  the  26th  February,  1828,  laws  of  N.  Y.  sess.  51, 
chap.  44,  provides  that  the  interest  of  the  common  school  fund 
of  the  town  of  Edmeston  "  shall  invariably  be  applied  to  the 
support,  use  and  benefit  of  the  common  schools  of  the  said 
town." 

The  11th  section  of  the  same  act  provides  in  like  manner 
that  the  interest  of  the  common  school  fund  aforesaid  "shall  be 
applied  to  the  support  of  common  schools  therein,"  i.  e.  in  the 
town  of  Edmeston,  and  shall  be  distributed  in  the  same  man- 


SUPERINTENDENT   OF    COMMON    SCHOOLS.  125 

ner  as  the  public  money  appropriated  for  the  support  of  common 
schools  is  now  distributed  by  law. 

The  true  interpretation  of  these  provisions  seems  to  be,  that 
ihe  interest  of  the  fund  referred  to  shall  be  applied  exclusively 
to  the  use  of  the  common  schools  in  the  town  of  Edmeston,  and 
that  it  shall  be  distributed  among  those  schools  as  the  public 
money  is  distributed  among  them.  Thus,  it  would  be  the  duty 
of  the  commissioners  of  common  schools  of  the  town  of  Edmes- 
ton in  the  case  of  your  district,  part  of  which  lies  in  Plainfield, 
to  pay  over  to  the  trustees  such  a  sum  only  as  they  would  be 
entitled  to  receive  upon  an  enumeration  of  the  children  between 
the  ages  of  5  and  16  years  residing  in  the  town  of  Edmeston; 
and  the  trustees  would  be  bound,  under  the  express  provisions 
of  the  act  above  quoted,  to  apply  it  to  the  benefit  of  those  chil- 
dren. Otherwise,  it  would  be  applied  to  the  "  support,  use  and 
benefit"  of  children  in  the  town  of  Plainfield,  which  was  clear- 
ly not  intended.  Independently  of  the  express  provisions  of  law, 
to  which  I  have  referred,  it  seems  to  me  that  on  the  score  of  jus- 
tice such  should  be  the  application  of  the  interest  of  the  Edmes- 
ton school  fund.  In  joint  school  districts,  the  public  moneys  are 
shared  equally  by  all  who  attend  school,  and  this  is  equitable, 
as  each  part  furnishes  its  quota  of  public  money,  although  the 
proportion,  compared  with  the  number  of  children  in  each  part, 
may  not  always  be  exactly  equal.  But  in  this  case  the  children 
attending  school  from  Plainfield  would  have  the  benefit  of  the 
Edmeston  school  fund  without  furnishing  any  equivalent,  un- 
less it  has  also  a  common  school  fund.  But  if  it  has  such  a 
fund,  I  think  the  manifest  intention  of  the  law  should  prevail, 
and  the  proceeds  of  the  fund  of  each  town  be  applied  exclusively 
to  its  own  schools.  As  the  matter  stands,  I  consider  it  perfectly 
clear  that  the  children  of  your  district  residing  in  Edmeston  and 
attending  school,  should  have  the  exclusive  benefit  of  the  sum, 
which  your  trustees  receive  fiom  the  commissioners  of  common 
schools  as  interest  of  the  common  school  fund  of  that  town. 

The  Trustees  of  school  district  No.  4  in  the  town  of 
Cobleskill,  ex  parte. 

When  a  new  district  is  formed,  the  public  moneys  on  hand  in  the  old  district 
should  be  equitably  divided. 

The  facts  of  this  case  are  fully  stated  in  the  Superintendent's 
decision. 

By  John  A.  Dix,  October  3,  1833.  I  have  received  aflSda- 
vits  in  support  of,  and  in  opposition  to,  an  application  from 
school  district  No.  4  in  the  town  of  Cobleskill,  for  its  proportion 


126  ajOOH'jPASES    DECIDED    BY   THE      isH^d 

of  the  school  moneys  apportioned,  on  the  first  Tuesday  of  April 
last,  to  district  No.  8,  from  which  the  former  was  taken. 

It  appears  that  district  No.  4  was  formed  by  the  commission- 
ers on  the  30th  of  March,  and  that  the  trustees  of  district  No. 
8  did  not  consent  to  the  alteration,  which  was  made  in  the  latter 
district.  The  new  district  could  not,  therefore,  go  into  opera- 
tion, nor  could  the  inhabitants  thereof  do  any  act  with  a  view 
to  its  organization,  until  three  months  after  notice  in  writing  to 
some  one  or  more  of  the  trustees  of  No.  8.  At  the  time  the  pub- 
he  moneys  were  apportioned  by  the  commissioners  of  common 
schools,  district  No.  4  did  not  exist  as  an  independent  organiza- 
tion, and  they  would  have  been  altogether  inexcusable  in  re- 
cognizing it  as  such  by  allotting  to  it  any  portion  of  those  mo- 
neys.    They  weie  right  in  the  execution  of  their  duty. 

But  district  No.  4  having  soon  afterwards  been  organized, 
with  the  consent  of  the  trustees  of  district  No.  8,  who  admit 
that  they  gave  tiieir  consent  in  order  that  the  former  might  go 
into  immediate  operation,  a  new  question  is  presented,  which 
has  a  very  material  bearing  upon  the  merits  of  the  application. 
Is  not  the  new  district  entitled  to  receive  from  No.  8  such  propor- 
tion of  the  public  money  as  it  would  have  been  entitled  to,  if  its 
organization  had  been  perfect  on  the  day  of  the  apportionment. 
Tliere  is  no  doubt  on  this  subject,  unless  the  public  moneys  have 
already  been  expended  for  the  common  benefit  of  both  districts 
or  appropriated  by  vote  of  the  district  to  a  previous  term.  On 
every  ground  of  equity  No.  4  is  entitled  to  a  just  proportion  of 
the  pubUc  moneys,  unexpended  or  unappropriated  as  aforesaid, 
in  the  hands  of  the  trustees  of  district  No.  8  at  the  time  the 
former  became  a  separate  district.  The  public  moneys  are  ap- 
portioned for  the  benefit  of  all  the  children  in  a  school  district, 
and  if  a  portion  of  the  children  are,  by  an  alteration  of  the 
bounds  of  the  district,  annexed  to  a  new  one,  an  equitable  propor- 
tion of  the  public  moneys  on  hand  and  unappropriated  as  before 
stated,  must  be  paid  over  for  their  benefit  to  the  trustees  of  the 
new  district,  to  which  they  are  transferred.  This  rule  appears 
to  jne  to  be  just  and  in  accordance  with  the  intention  of  the  sta- 
tute in  relation  to  the  common  schools. 

It  will  be  proper,  therefore,  for  the  trustees  of  district  No.  8,  un- 
less they  have  been  otherwise  instructed  by  a  vote  of  the  district^ 
to  pay  to  any  qualified  teacher,  who  has  been  employed  in  the 
district  previous  to  its  division,  so  much  of  the  public  money  as 
shall  be  necessary  to  compensate  him  for  his  services.  But  if 
they  had  in  their  hands  at  t  he  time  district  No.  4  went  into  ope- 
raiion,  any  pubhc  money  not  essential  to  that  object,  they  must 
divide  it  between  their  own  district  and  No.  4  according  to  the 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  127 

number  of  children  over  5  and  under  16  years  of  age  remaining 
in  one  and  set  off  to  the  other. 

The  inhabitants  of  school  district  No.  7  in  the  town 
of  Carhsle,  ex  parte. 

Trustees  cannot  be  compelled  to  pay  interest  on  school  moneys  in  their  hands, 
nor  can  the  inhabitants  cause  it  to  be  taken  out  of  their  hands  and  loaned  at 
interest. 

This  was  an  application  from  the  inhabitants  of  school  district 
No.  7  in  the  town  of  Carlisle,  for  the  opinion  of  the  Superinten- 
dent as  to  their  right  to  require  the  trustees,  by  a  vote  at  a  dis- 
trict meeting,  to  loan  at  interest  the  public  moneys  received  by 
them,  until  wanted  to  pay  teachers'  wages.  He  was  also  desired 
to  state  whether  the  trustees  could  be  compelled  to  pay  interest 
during  the  time  those  moneys  remained  unexpended  in  their 
[lands. 

By  JoriN  A.  Dix,  October  16,  1833.  The  statute  places 
tiie  public  moneys  belonging  to  school  districts  in  the  hands  of 
the  trustees,  and  gives  to  the  inhabitants  the  power  of  dividing 
it  into  portions  to  be  applied  to  particular  seasons  of  the  year. 
Beyond  this  the  latter  have  no  power  to  control  it.  Tlie  trustees 
must  keep  the  money  safely,  and  pay  it  out  as  authorized  by 
the  inhabitants,  or  as  the  law  requires  if  the  inhabitants  give  no 
direction  in  relation  to  it ;  but  they  cannot  be  made  to  pay  inte- 
rest on  it,  nor  can  the  inhabitants  direct  it  to  be  taken  out  of 
their  hands  and  loaned  at  interest  to  any  other  person  or  per- 
sons. 

The  Trustees  of  school  district  No.  3  in  the  jtown  oj 
Chenango,  ex  parte. 

"  A  school-house  cannot  be  sold  under  execution  on  a  judgment  against  the 
trustees  of  the  district. 

George  W.  Drew,  a  teacher  in  school  district  No.  3  in  the 
town  of  Chenango,  commenced  a  suit  before  a  justice  of  the 
peace  against  the  trustees  for  the  recovery  of  wages  due  him  on 
a  contract  with  their  predecessors  in  office.  No  defence  was  in- 
terposed by  the  trustees,  and  judgment  was  rendered  against 
them.  Execution  was  issued,  and  the  school-house,  worth  from 
^'1,200  to  $1,.500,  was  advertised  for  sale  by  the  sheriff,  the 
amount  of  the  judgment  being  somewhat  more  than  $30.  The 
question  submitted  to  the  Superintendent  was,  whether  the  school 
house  could  be  sold  to  satisfy  the  judgment  against  the  trustees? 

By  John  A.  Drx,  November  4,  1833.  No  case  like  the  one 
stated  has  come  under  the  notice  of  vxy  predecessor  or  rayself. 


128  ^'•■'  '"*tASES    DECIDED    BY    THE      *' 

But  it  seems  to  me  to  be  clear,  from  an  examination  of  the  law, 
that  a  school-house  cannot  be  sold  under  execution  on  a  judg- 
ment obtained  against  the  trustees  of  the  district.  Although 
they  are  invested  with  certain  corporate  capacities,  they  are  not 
in  law  a  corporation  with  general  powers.  Their  liabilities 
would  not  therefore  be  such  as  to  authorize  district  property  in 
their  custody  to  be  sold  under  executions  against  them,  without 
some  special  provision  of  law  to  that  effect.  Besides,  the  Revis- 
ed Statutes,  vol.  2,  page  476,  sec.  108,  have  made  provision  with 
regard  to  the  collection  of  judgments  against  trustees  of  school 
districts,  which  are  altogether  inconsistent  with  such  a  proceed- 
ing. The  trustees  are  made  individually  liable  for  judgments 
rendered  against  them,  and  the  amount  collected  of  them  is  to 
be  allowed  in  their  official  accounts.  If  the  sheriff  goes  on  to 
sell,  the  sale  will  be  void.  The  best  mode  of  settling  the  con- 
troversy will  be  for  the  trustees  to  pay  out  of  any  moneys  in 
their  hands  belonging  to  the  district,  the  amount  of  the  judgment. 
If  their  predecessors  have  misapplied,  or  have  failed  to  account 
for  the  moneys  which  came  into  their  possession  while  in  office, 
they  should  be  prosecuted  by  the  present  trustees,  under  sections 
100,  101  and  102,  1  R.  S.  page  486, 

The  Trustees  of  school  district  No.  35  io  the  town 
of  Manlius,  ex  parte. 

Purchases  of  land  subsequent  to  the  formation  of  a  new  district  do  not  affect  its 

boundaries. 

In  the  spring  of  1833,  school  district  No.  12  in  the  town  of 
Manlius  was  divided,  and  district  No.  35  formed  by  setting  off  a 
part  of  the  former.  A.  B.  owned  and  occupied  a  farm,  which 
by  the  division  remained  in  No.  12 ;  but  immediately  after  the 
division  he  purchased  a  farm  lying  in  No.  35,  and  annexed  it  to 
the  farm  he  occupied,  which  was  adjacent  to  it.  The  question 
submitted  to  the  Superintendent  was,  whether  the  farm  so  pur- 
chased in  No.  35  was  liable  to  be  taxed  in  that  district  for  a 
school-house,  or  whether  by  annexing  it  to  his  own  farm  in  No. 
12  it  formed  a  part  of  the  farm,  so  as  to  become  taxable  in  the 
latter  district. 

By  John  A.  Dix,  November  4,  1833.  The  farm  purchased 
by  A.  B.  in  school  district  No.  35,  Manlius,  must  be  taxed  in 
that  district.  If  he  had  purchased  it  previous  to  the  division  of 
school  district  No.  12,  and  annexed  it  to  his  home  farm,  the  case 
would  be  somewhat  different.  But  as  the  matter  stands,  it 
seems  to  me  that  there  can  be  no  doubt  about  it.  The  farm 
was  a  part  of  district  No.  35  when  he  purchased  it.  He  cannot 
by  purchasing  and  annexing  it  to  a  contiguous  farm  in  another 


SUPERINTENDENT    OF   COMMON   aCHOOLS.  129 

district,  release  it  from  its  pre-existing  liability  to  taxation  in  the 
district  of  which  it  was  a  part  at  the  time  of  the  purchase.* 

Robert  Piatt  and  others,  against  the  inhabitants  of 
school  district  No.  8  in  the  town  of  Peru. 

The  clerk  of  a  school  district  cannot  designate  a  place  for  an  annual  meeting 
when  it  has  been  omitted  at  the  previous  annual  meeting. 

Two  meetings  being  held  at  different  places  on  the  same  day  as  an  annual  meet- 
ing, a  new  one  will  be  ordered. 

The  facts  of  this  case  are  stated  in  the  Superintendent's  deci- 
sion. 

By  John  A.  Dix,  November  4,  1833.  On  examination  of 
the  appeal  of  certain  inhabitants  of  school  district  No.  8  in  the 
town  of  Peru,  it  appears  that  the  annual  meeting  of  the  inha- 
bitants of  that  district,  on  the  1st  Monday  of  October,  1832,  was 
adjourned  to  the  1st  Monday  of  October,  1833,  at  4  o'clock,  P. 
M.  without  appointing  the  place  of  meeting  as  required  by  law. 
It  also  appears  that  for  many  years  the  annual  meetings  of  the 
inhabitants  have  been  uniformly  held  at  the  district  school-house. 
On  the  28th  of  Sept.  last  the  district  clerk  gave  notice  of  the  an- 
nual meeting  for  the  day  specified,  to  be  held,  "  at  the  store-house 
of  widow  Craig,  Peru  landing,"  in  consequence  of  the  unfinish- 
ed state  of  a  new  school-house  erected  on  the  site  of  the  old  one- 
Notwithstanding  thi*  notice  nine  of  the  taxable  inhabitants  met 
at  the  new  school-house,  organized,  and  elected  district  officers, 
while  another  portion  of  them,  fourteen  in  number,  met  at  the 
place  specified  in  the  notice,  and  also  elected  officers  for  the  dis- 
trict. 

It  is  clear  that  the  clerk  of  the  district  had  no  right  to  supply 
an  omission  in  the  proceedings  of  the  previous  annual  meeting 
by  appointing  a  place  for  holding  the  next.  This  duty  is  spe- 
cially enjoined  by  law  upon  the  inhabitants  of  the  district,  assem- 
bled at  their  annual  meeting;  and  if  neglected,  the  defect  can 
only  be  supplied  by  meeting  at  the  usual  place,  or  by  the  inter- 
position of  the  Superintendent  of  Common  Schools,  on  applica- 
tion to  him.  If  any  place  had  been  named  by  the  clerk  in  his 
notice  it  should  have  been  the  usual  place  for  holding  the  annual 
meetings ;  for  this,  if  any,  must  have  been  intended  by  the  in- 
habitants. The  proper  mode,  therefore,  of  remedying  the  omis- 
sion in  this  case  was  for  the  inhabitants  to  meet  at  the  school- 
house,  and  if  found  in  an  unfit  condition  for  holding  the  meet- 
ing, they  should  have  adjourned,  after  organizing,  to  some  other 
place.  In  this  manner  the  intention  of  the  last  annual  meeting 
would  have  been  satisfied,  though  the  requirements  of  the  law 

*  See  a  case  decided  J>y  A.  C.  Flagg>  October  18,  1830,  p.  69. 

9 


IdO  CASES    DECIDED    BY    THE 

would  not  have  been  strictly  fulfilled.  The  clerk  of  the  ^tncl 
acted  without  authority  in  appointing  a  place  for  the  meeting; ' 
for  he  is  only  authorized  by  law  to  give  notice  of  time  and  place 
when  appointed  by  the  competent  authority.  Yet,  if  the  inha- 
bitants had  assembled  at  the  time  and  place  specified  in  his  no- 
tice; if  there  had  been  no  surprize  on  the  part  of  any,  and  no 
exception  had  been  taken  at  the  time,  by  objecting  to  the  pro- 
ceedings, or  by  refusing  to  attend  the  meeting,  it  might  be  a 
question  whether  the  result  should  be  disturbed  by  the  Superin- 
tendent on  appeal,  even  though  the  requirements  of  the  law  had 
not  been  fulfilled,  with  regard  to  a  designation  of  the  place  of 
meeting  by  the  inhabitants  at  their  last  annual  meeting,  and 
though  their  intention  had  not  been  satisfied  by  holding  it  at 
the  usual  place.  But  as  two  meetings  have  been  held,  and  as 
exception  has  been  taken  to  one  of  them  by  a  formal  appeal  to 
him,  the  question  now  presented  is,  whether  he  can,  upon  refe- 
rence to  the  provisions  of  the  law,  pronounce  the  proceedings  ©f 
either  to  be  valid.  For  the  reasons  already  assigned,  neither  of 
the  meetings  appears  to  him  to  have  been  held  with  such  cor>- 
formity  to  the  requirements  of  the  law  as  to  give  validity  to  its 
proceedings.  The  one  held  at  the  school-house,  (the  usual 
place,)  though  held  both  without  notice  and  in  direct  disregard 
of  the  notice  given  by  the  proper  officer,  might  have  been  sus- 
tained if  generally  attended:  but  it  was  attended  by  a  small  num- 
ber only,  with  surprize  on  the  part  of  many,  who  attended  the 
other  meeting  under  the  misdirection  of  the  clerk.  On  the  other 
hand,  the  meeting  at  the  store-house  of  the  widow  Craig  was 
held  in  pursuance  of  an  unauthorized  notice,  so  far  as  the  desig- 
nation of  place  is  concerened.  It  was  but  partially  attended, 
and  with  surprize  on  the  part  of  some,  who  attended  the  meeting 
at  the  usual  place,  or  at  all  events  without  their  assent.  Neither 
of  these  meetings  can,  therefore,  be  eorisidered  such  a  one  as  is 
contemplated  by  law. 

If  the  annual  meeting  had  been  altogether  neglected,  the  Su- 
perintendent would  not,  without  strong  reasons,  interpose;  and 
the  trustees  in  oflfice  would,  in  pursuance  of  a  rule  already  esta- 
blished, hold  over  another  year.  But  in  annulling  the  proceed- 
ings of  the  two  meetings  referred  to,  it  seems  proper  that  the 
choice  of  oflScers  should  be  again  submitted  to  the  inhabitants 
of  the  district,  and  their  preferences  fairly  ascertained. 

It  is  therefore  decided,  that  the  proceedings  of  the  two  meet- 
ings of  the  inhabitants  of  school  district  No.  8  in  Peru,  held  on 
the  Ist  Monday  of  October  last,  are  void  and  of  no  eflect;  and 
it  is  ordered,  that  a  special  meeting  of  the  inhabitants  of  said  dis- 
trict be  held  on  the  fourth  Monday  of  November  instant,  at  the 
new  school-house,  at  4  o'clock  in  the  afternoon  of  that  day,  for 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  131 

the  purpose  of  electing  district  officers,  and  for  transacting  any 
Other  business  which  may  be  brought  before  them.  They  will 
also  appoint  the  time  and  place  for  holding  the  next  annual 
meeting.  The  clerk  of  the  district  will  give  to  the  inhabitants 
such  a  notice  of  the  meeting  hereby  appointed  as  is  required  by 
law  when  a  special  meeting  is  called  by  the  trustees.  •• 

William  Ross  and  others,  against  the  inhabitants  of 
school  district  No.  4  in  the  town  of  Mentz. 

If  at  an  annual  meeting  a  reasonable  time  is  not  allowed  to  the  inhabitants  to  as- 
semble, a  new  meeting  will  be  ordered. 

The  facts  of  this  case  are  stated  in  the  Superintendent's  or- 
der. 

By  John  A.  Dix,  November  5,  1833.  On  the  seventh  day 
of  October  ult  the  inhabitants  of  school  district  No.  4  in  the 
town  of  Mentz,  held  their  annual  meeting  at  the  school-house 
in  said  district.  The  hour  appointed  at  the  previous  annual 
meeting  was  four  o'clock  in  the  afternoon,  and  regular  notice 
thereof  was  given  by  the  clerk  of  the  district.  About  twenty 
minutes  past  four,  when  eight  of  the  taxable  inhabitants  were 
assembled,  it  was  proposed  to  organize  and  proceed  to  business, 
as  the  weather  was  unpromising,  and  it  was  desirable  to  close 
the  proceedings  before  it  was  dark.  To  this  proposition  objec- 
tions were  made  by  William  Ross,  who  stated  that  much  excite- 
ment prevailed  in  the  district,  and  that  there  would  undoubtedly 
be  a  general  attendance  of  the  inhabitants.  He,  therefore,  urged 
that  a  reasonable  time  should  be  allowed  for  them  to  assemble. 
Notwithstanding  these  objections,  the  meeting  proceeded  to  busi- 
ness, and  when  the  trustees  were  chosen,  only  nine  voters  were  pre- 
sent. Immediately  after  the  election  seven  or  eight  more  made 
their  appearance,  and  before  5  o'clock  24  taxable  inhabitants  were 
present  Some  of  the  latter,  took  part  in  subsequent  proceedings, 
and  a  motion  was  made  to  reconsider  the  choice  of  officers,  but 
the  moderator  refused  to  put  the  question  to  the  meeting.  Thus 
it  appears,  that  the  officers  of  the  district  have  been  chosen  by 
nine  persons,  although  by  a  delay  of  a  few  minutes  the  wishes 
of  a  large  majority  of  all  the  taxable  inhabitants  might  have 
been  ascertained;  and  this  in  opposition  to  the  remonstrance  of 
one,  if  not  more,  of  the  voters  present  at  the  organization  of 
the  meeting.  Although  it  was  the  duty  of  all  the  voters  to 
attend  punctually  at  the  hour  appointed;  yet  it  seems  to  the 
Superintendent  that  the  haste  with  which  the  choice  was  made, 
and  the  refusal  of  the  persons  who  made  it,  to  admit  of  any 
participation  in  it  by  those  who  arrived  subsequently  and  ex- 
pressed a  wish  to  vote,  evince  a  disposition  to  take  an  undue 


132  CASES    DECIDED    BY    THE 

advantage  of  their  neighbors,  who  were  equally  interested  with 
themselves  in  the  prosperity  of  the  district.  At  all  events  the  '^. 
wishes  of  the  district  have  not  been  expressed ;  and  he  feels  sa- 
tisfied that  the  district  officers,  thus  chosen  by  a  small  minority 
of  the  inhabitants,  will,  on  reflection,  see,  as  he  does,  the  pro- 
j)riety  of  submitting  their  claims  to  the  clearly  expressed  will 
of  the  majority. 

It  is,  therefore,  ordered,  that  the  choice  of  district  officers  made 
at  the  annual  meeting  of  the  inhabitants  of  district  No.  4  in  the 
town  of  Mentz  aforesaid,  on  the  7th  day  of  Oct.  ult.  be,  and  it 
is  hereby  set  aside.  And  it  is  further  ordered,  that  a  special  meet- 
ing of  the  inhabitants  of  said  district  be  held  on  the  fourth  Mon- 
day of  November  instant,  at  the  school-house  in  said  district,  at 
6  o'clock  in  the  afternoon,  for  the  purpose  of  choosing  district  of- 
ficers, and  for  the  transaction  of  any  other  business  which  may 
come  before  it.  The  clerk  of  the  district  will  give  the  inhabi- 
tants such  a  notice  of  the  meeting  hereby  appointed,  as  is  re- 
quired when  a  special  meeting  is  called  by  the  trustees  of  a  school 
district. 

J.  C.  Van  Buskirk  and  others,  against  the  inhabitants 
of  school  district  No.  1  in  the  town  of  Aurelius. 

Sites  for  school-houses  should  not  be  fixed  without  a  fair  expression  of  the  opi- 
nions and  wishes  of  the  inhabitants. 

If  the  title  to  the  site  of  a  school- house  fails,  the  inhabitants  may  select  another 
precisely  as  though  the  district  had  never  possessed  one. 

The  toll-house  and  lot  of  a  bridge  company  are  not  taxable  as  real  estate. 

The  facts  of  this  case  are  fully  stated  in  the  Superintendent's 
order. 

By  John  A.  Dix,  November  6,  1833.  On  the  7th  of  Oc- 
tober ult.  the  inhabitants  of  school  district  No.  1  in  the  town  of 
Aurelius,  Cayuga  county,  held  their  annual  meeting  in  pursu- 
ance of  adjournment  and  public  notice  as  required  by  law,  seven 
voters  being  present.  After  the  election  of  district  officers  the 
meetmg  proceeded  to  vote  a  new  site  for  a  school  house,  the  build- 
ing used  for  that  purpose  having  been  consumed  by  fire,  and  the 
title  to  the  former  site  having,  as  is  alleged,  proved  defective.  It 
was  tlien  resolved  to  build  a  new  school-house,  a  tax  of  two 
hundred  and  fifty  dollars  was  voted  for  the  purpose,  the  dimen- 
sions of  the  building  were  prescribed,  and  the  meeting  was  ad- 
journed to  the  9th  of  the  same  month. 

To  the  proceedings  of  this  meeting  it  is  objected :  That  the 
vote  given  for  changing  the  site  of  the  school-house  was  in 
violation  of  the  provisions  of  the  Revised  Statutes,  vol.  1.  page 
479,  sec.  66. 

By  reference  to  the  act  of  Feb.  17,  1831,  sec.  6,  (laws  of 


SUPERINTENDENT    OF   COMMON    SCHOOLS.  133 

N.  Y.  sess.  54,  chap.  44,)  it  will  be  perceived  that  the  provisions 
of  the  section  above  referred  to  are  repealed,  although  they  are 
re-enacted,  with  modifications,  in  the  preceding  sections  of  that 
act. 

The  intention  of  the  act  of  1831,  is,  that  the  site  of  the  school- 
house  when  it  is  once  procured  and  fixed,  and  the  house  has 
been  built  or  purchased,  shall  not  be  changed,  excepting  in  the 
mode  therein  prescribed.  But  if  a  site  has  never  been  procured, 
none  of  the  provisions  of  the  act  apply.  It  may  be  selected  at 
any  meeting  of  the  inhabitants  of  the  district,  without  such  a 
special  notice  as  is  required  by  the  3rd  section  of  the  act  of  1831. 
In  like  manner,  if  a  site  has  been  established  and  the  title  to  it 
fails,  the  same  principle  must  apply.  The  district  is  absolutely 
without  a  site.  The  site  is  not  to  be  changed,  but  it  is  to  be 
chosen,  precisely  as  though  the  district  had  never  possessed  one. 
To  such  a  case  it  is  manifest  that  the  provisions  of  the  act  of 
1831  cannot  be  applicable.  It  could  never  have  been  intended 
that  the  commissioners  of  common  schools  should,  when  the  ne- 
cessity of  the  case  is  inevitable,  be  required  to  consent  to  the 
change  or  state  it  to  be  necessary;  nor  could  it  have  been  intend- 
ed that  a  vote  of  two-thirds  of  the  persons  present  at  a  special 
meeting  called  for  the  purpose  and  qualified  to  vote  therein,  should 
be  required  to  select  a  site  when  the  distri(;t  is  without  any,  or 
even  to  remove  the  school-house,  when  the  title  to  the  ground  has 
failed.  The  provisions  of  the  act  of  1831  being  intended  lor 
a  particular  case,  none  of  them  are  to  be  considered  applicable 
where  the  case  in  point  has  not  occurred. 

It  has  been  shown  to  the  Superintendent  of  common  schools 
by  the  affidavit  of  five  persons,  that  the  land  on  which  the 
school-house  of  district  No.  1,  recently  consumed  by  fire,  stood, 
is  "  now  owjied  by  Henry  Hopper,  and  that  the  school  district 
have  no  title  or  claim  to  the  land  on  which  the  said  school-house 
was  situated,  by  lease,  deed,  or  otherwise."  The  district  can- 
not therefore  be  considered  as  having  such  a  site  for  a  school- 
house  as  is  contemplated  by  law,  and  the  provisions  of  the  act 
of  1831  before  referred  to  are  wholly  inapplicable  to  the  case. 
The  inhabitants  of  the  district  at  any  meeting  when  they  are 
legally  assembled,  whether  the  notice  for  the  meeting  states  a 
special  purpose  or  not,  may,  by  a  majority  of  votes,  select  a  site 
and  lay  a  tax  for  purchasing  it.  If,  however,  there  has  been 
surprise  on  the  part  of  any  of  the  inhabitants,  or  if  there  is  rea- 
son to  believe  that  the  sense  of  the  majority  has  not  been  fairly 
expressed,  it  is  in  the  discretion  of  the  Superintendent  of  Com- 
mon Schools,  on  appeal  to  him,  to  set  aside  the  proceedings 
complained  of,  and  order  the  question  to  be  submitted  anew  to 
the  district. 


/ii^  -.;,.,,,<     CASES    DECIDED    BY    THE      i  ii  f>- 

It  appears  by  the  testimony  of  the  applicants  in  this  case,  and 
by  the  admission  of  the  appellees,  that  there  were  but  seven  per- 
sons present  at  the  annual  meeting  on  the  7th  October,  although 
as  is  stated  by  the  former,  the  number  of  taxable  inhabitants 
belonging  to  the  district  ia  between  thirty-five  and  forty-five. 
The  omission  of  voters  to  attend  district  meetings,  where  the  le- 
gal notice  has  been  regularly  given,  constitutes  no  just  ground 
in  ordinary  cases  for  vacating  the  proceedings  of  such  meetings. 
If  the  parties  concerned  will  not  attend,  they  have  no  right  to 
complain  that  their  business,  through  their  own  inattention,  has 
been  transacted  by  others,  however  small  the  number  of  persons 
who  have  disposed  of  it.  The  Superintendent  will  not,  there- 
fore, disturb  any  portion  of  the  proceedings  of  the  annual  meet- 
ing which  relates  to  business  ordinarily  transacted  at  such  meet- 
ings, such  as  the  choice  of  district  officers.  But  he  deems  it  due 
to  the  quietude,  if  not  to  the  permanent  prosperity,  of  the  district, 
that  the  choice  of  a  site  for  a  school-housa  should  be  again  sub^ 
mitted  to  the  inhabitants.  The  position  of  the  school-house  is  a 
matter  of  interest  to  the  whole  district,  more  especially  as  a  change 
in  the  site,  when  it  has  been  once  permanently  fixed,  is  embar- 
rassed by  great  difficulties;  and  it  is  due  to  all  concerned  that 
full  opportunity  should  be  given  for  making  a  fair  and  dehberate 
choice.  The  Superintendent  would  consider  it  unjustifiable  on 
the  score  of  equity  alone,  without  reference  to  its  bearing  upon 
the  tranquillity  of  the  district,  to  allow  a  question  of  this  magni- 
tude to  be  settled  by  a  majority  of  seven  persons,  when  at  least 
thirty  more  have  an  equal  interest  in  it. 

There  are  several  minor  objections  to  the  proceedings  of  the 
meeting,  which  it  is  unnecessary,  for  the  purposes  of  this  deci- 
sion, to  notice. 

To  the  assessment  made  by  the  trustees  of  the  taxes  voted  foi 
building  a  school-house  and  purchasing  a  site,  it  is  objected  that 
the  Cayuga  Bridge  Company  has  been  taxed  $41.90  upon  its 
property,  valued  at  $7,000,  in  school  distiict  No.  1. 

On  referring  to  the  act  of  incorporation,  and  the  several  acts 
amending  it,  it  appears  that  the  Cayuga  Bridge  Company  were 
authorized  to  construct  a  bridge  "  over  the  Cayuga  Lake  on  the 
outlet  thereof,"  and  also  to  erect  a  permanent  bridge  across  the 
Cayuga  Lake  between  the  villages  of  East  and  West  Cayuga, 
in  addition  to  their  bridge  built  over  the  outlet  of  said  lake. 

These  bridges  are  both  in  use.  The  tolls  of  one  are  collect- 
ed in  Aurelius  within  the  bounds  of  school  district  No.  1,  and 
the  tolls  of  the  other  are  collected  in  the  town  of  Seneca  Falls. 

The  Revised  Statutes,  vol.  1,  page  390,  section  6,  provide  that 
"  when  the  tolls  of  any  bridge,  turnpike,  or  canal  company  are 
collected  in  several  towns  or  wards,  the  company  shall  be  as- 


SUPERINTENDENT    OP    COMMON    SCHOOLS.  135^, 

aessed  in  the  town  or  ward  in  which  the  treasurer  or  other  offi- 
cer authorized  to  pay  the  last  preceding  dividend,  resides."  This 
provision,  however,  does  not  include  the  real  estate  of  the  com- 
pany. For  it  is  provided  at  the  beginning  of  the  section  that 
"the  real  estate  of  all  incorporated  companies  liable  to  taxation 
shall  be  assessed  in  the  town  or  ward  in  which  the  same  shall 
be,  in  the  same  manner  as  the  real  estate  of  individuals." 

The  affidavit  of  John  C.  Van  Buskirk  sets  forth  that  "the 
treasurer  of  the"  Cayuga  Bridge  "  Company,  authorized  to  pay 
the  last  dividend,  resides  at  Seneca  Falls  in  Seneca  county." 
The  personal  property  of  the  company  therefore,  and  the  amount 
of  its  capital,  exclusive  of  its  real  estate  lying  in  other  towns,  is 
taxable  in  the  town  of  Seneca  Falls,  although  the  value  of  the 
bridge  terminating  in  Aurelius  be  included  in  that  amount. 

However  inequitable  the  operation  of  the  rule  in  this  instance 
may  be,  it  is  clearly  a  case  within  the  provisions  of  the  Revised 
Statutes  above  quoted.  The  property  of  the  company,  exclusive 
of  its  real  estate  in  other  towns,  must  be  taxed  in  the  town  of 
Seneca  Falls.  It  only  remains  then  to  be  considered  whether 
the  company  has  any  property  in  district  No.  1,  which  comes 
within  the  definition  of  real  estate.  If  it  has  nothing  more  than 
a  house  for  the  use  of  the  toll  gatherer,  and  a  lot  no  more  than 
sufficient  for  his  accommodation,  I  am  of  opinion  that  they  are 
to  be  considered,  like  the  toll-house  and  gate  of  a  turnpike  com- 
pany, as  a  necessary  appendage  to  the  franchise,  almost  equally 
indispensable  to  its  enjoyment  with  the  bridge  itself.  The  affi- 
davit of  John  C.  Van  Buskirk  puts  the  value  of  the  house  and 
lot  at  $200  or  $250,  according  to  the  ordinary  standard  of  valu- 
ation adopted  by  the  assessors  of  the  town,  an  amount  so  small 
that  it  would  be  hardly  reasonable  to  treat  it  as  representing  real 
estate  distinct  from  the  capital  stock  of  the  company.  Upon  a 
full  view  of  the  case,  therefore,  I  think  the  property  of  the  Cay- 
uga Bridge  Company  is  not  liable  to  be  taxed  at  all  in  the  town 
of  Aurelius. 

As  upon  these  points  the  whole  case  may  be  disposed  of,  it  is 
unnecessary  to  take  notice  of  the  remaining  objections  to  the 
proceedings  of  the  two  meetings  from  which  the  appeal  under 
examination  is  brought. 

It  is  accordingly  ordered,  that  the  proceedings  of  the  two  meet- 
ings in  school  district  No.  1,  Aurelius,  held  on  the  7th  and  9th 
October  ult.,  excepting  so  far  as  they  relate  to  the  choice  of  dis- 
trict officers,  be  and  they  are  hereby  annulled ;  and  it  is  further 
ordered,  that  all  subsequent  proceedings  by  virtue  of  the  votes 
taken  at  said  meetings  for  selecting  a  site  for  a  school-house,  for 
laying  a  tax  for  the  purchase  of  said  site,  and  for  laying  a  tax 
for  building  a  school-house,  be,  and  they  are  hereby  set  aside. 


136  CASES   DECIDED   BY  THE 

And  the  trustees  of  said  district  are  liereby  required  to  call  a  spe- 
cial meeting  of  tlie  inhabitants  at  an  early  day,  for  the  purpose 
of  announcing  this  decision,  and  of  giving  them  the  opportunity 
of  taking  such  measures  in  the  premises  as  upon  reconsideration 
may  appear  to  them  to  be  due  to  the  quietude  and  prosperity  of 
the  district. 

The  inhabitants  of  school  district  No.  14  in  the  town 
of  Richland,  against  the  Commissioners  of  Com- 
mon Schools  of  said  town. 

School  districts  should  not  be  so  reduced  in  strength  as  to  be  unable  to  maintain 
respectable  schools. 

Dissensions  in  school  districts  cannot  be  allowed  to  be  made  a  ground  for  alter- 
ing or  breaking  them  up. 

This  was  an  appeal  to  the  Superintendent  under  circumstan- 
ces which  are  fully  stated  in  his  decision. 

By  John  A.  Dix,  November  11,  1833,  On  the  31st  day  of 
August  last,  the  commissioners  of  common  schools  of  the  town 
of  Richland,  Oswego  county,  formed  a  new  district  of  a  part  of 
district  No.  14  and  other  contiguous  territory.  From  this  pro- 
ceeding, the  inhabitants  of  the  latter  appeal  to  the  Superinten- 
dent of  Common  Schools. 

District  No.  14,  before  it  was  divided  by  the  commissioners, 
had  40  children  between  the  ages  of  5  and  16  years,  and  a  tax- 
able property  amounting  to  $4,370.  By  the  alteration  referred 
to,  the  number  of  children  is  reduced  to  29,  and  the  taxable 
property  to  $3,250.  The  Superintendent  is  decidedly  of  the 
opinion  that  the  district,  with  such  a  reduction  of  its  wealth  and 
of  the  children  upon  whom  the  public  money  is  apportioned, 
would  hardly  be  adequate  to  the  support  of  such  a  school  as  is 
indispensable  to  the  proper  education  of  their  children.  It  is  the 
great  evil  of  the  common  school  system  that  the  teachers  are 
not  always  so  well  qualified  as  they  should  be.  It  is  obviou:^ 
that  their  qualifications  will  generally  be  in  proportion  to  their 
compensation ;  and  it  is  an  object  of  the  highest  ittiportance  to 
secure  to  every  district  the  ability  of  maintaining  a  respectable 
school,  by  employing  a  teacher  of  the  requisite  learning  and  abi- 
lity. By  preserving  the  district  as  it  existed  previous  to  the  di- 
vision made  by  the  commissioners,  some  of  the  inhabitants  may 
be  compelled  to  send  a  greater  distance  to  school,  and  they  may 
even  be  unable  to  send  at  all  during  some  days  in  winter  by  rea- 
son of  the  state  of  the  roads.  But  admitting  all  this  to  be  true, 
the  evil  will  be  far  less  than  that  of  reducing  the  strength  of  dis- 
trict No.  14  80  much  as  to  disable  it  for  maintaining  a  respectable 
school.     The  Superintendent  has  no  means  of  knowing  the  situ- 


\ 


SUPERINTENDENT    OF   COMMON    SCHOOLS.  137 

ation  of  the  inhabitants  who  were  taken  to  form  district  No. 
22,  excepting  those  who  were  set  off  from  district  No.  14.  But 
he  cannot  consistently  with  what  he  deems  due  to  the  latter, 
sanction  the  alteration  made  by  the  commissioners. 

It  is  alleged  that  a  personal  difficulty  has  existed  between 
some  of  the  inhabitants  of  district  No:  14,  and  that  the  district  has 
thereby  been  kept  in  a^^erpetual  ferment  for  sometime  past.  Al- 
though these  dissensions  are  exceedingly  to  be  regretted  when 
they  are  allowed  to  influence  the  conduct  of  individuals  in  rela- 
tion to  the  education  of  their  children,  it  would  be  extremely 
dangerous  to  allow  them  to  be  made  a  ground  for  altering  or 
breaking  up  school  districts.  It  is  far  better  to  trust  to  the  gootl 
sense  and  sober  reflection  of  the  parties  concerned,  and  to  believe 
that  they  will,  ere  long,  in  a  matter  so  deeply  affecting  the  cha- 
racter and  interest  of  their  children,  come  together  under  the 
guidance  of  more  rational  counsels,  and  sacrifice  their  private 
animosities  to  considerations  of  their  own,  as  well  as  the  common 
good.  They  cannot  fail  to  see  that  without  a  spirit  of  modera- 
tion and  forbearance  the  good  order  of  society  could  not  long  be 
maintained,  and  that  the  benefits  it  is  designed  to  secure  could 
not  be  enjoyed  in  comfort  or  safety. 

It  is  hereby  ordered,  that  the  proceedings  of  the  commission- 
ers of  common  schools  of  Richland,  in  the  formation  of  school 
district  No.  22,  be  set  aside,  and  that  the  said  district  be,  and  it 
is  hereby,  annulled. 

* 
The  Trustees  of  school  district  No.  8  in  the  town  of 
CohleskiW,  ex  parte. 

Public  moneys  are  to  be  equitably  dirided  when  a  new  district  is  formed.  ■) 

The  facts  of  this  case  are  the  same  as  stated  in  the  Superin- 
tendent's opinion  on  the  application  of  the  trustees  of  school  dis- 
trict No.  4  in  the  town  of  Cobleskill,  page  125. 

By  John  A.  Dix,  November  12,  1833.  By  a  rule  heretofore 
estabUshed  by  the  Superintendent  of  Common  Schools,  whenever 
a  new  school  district  is  formed  after  the  public  moneys  are  dis- 
tributed, the  inhabitants  who  are  taken  to  constitute  it,  are  en- 
titled to  receive  from  the  districts  from  which  they  are  set  off, 
their  just  proportion  of  the  school  moneys  apportioned  to  said  dis- 
tricts, according  to  the  number  of  their  children  between  5  and 
16  years  of  age.  Although  this  division  of  the  public  moneys 
is  not  made  obligatory  by  law,  it  is  in  accordance  with  the  whole 
tenor  of  its  provisions,  and  a  different  rule  could  not  be  set  up 
\\nthout  manifest  injustice  and  an  entire  abandonment  of  th« 
principle  upon  which  the  proceeds  of  the  common  school  fund 
are  distributed.     The  right  to  receive  the  school  money  as  above 


138  CASES    DECIDED    BY   THE 

stated  may  be  waived  by  the  parties  concerned,  but  it  cannot  be 
taken  away  without  their  consent.  You  will  understand  me  as 
referring  only  to  such  portion  of  the  public  moneys  in  the  hands 
of  the  trustees  as  is  unexpended  or  unappropriated  by  vote  of 
the  inhabitants  to  a  term  preceding  the  division  of  the  district. 

The  new  district  (No.  4,)  will,  therefore,  be  entitled  to  receive 
from  you  $4.34,  unless  some  portion  of  the  school  money,  which 
you  received,  was  appropriated  to  the  payment  of  a  qualified 
teacher  for  his  services  after  the  first  of  January  last,  and  be- 
fore the  division  of  your  district. 

The  inhabitants  of  school  district  No.  in  the 

town  of  Petersburgh,  ex  "parte. 

School  may  be  kept  on  Sunday  for  the  benefit  of  persons  who  observe  Saturday 
as  holy  time,  and  the  teacher  must  be  paid  for  that  day  by  those  who  send  to 
school. 

A  teacher  may  receive  the  public  money  if  he  dismisses  his  school  on  Saturday 
and  keeps  it  open  on  Sunday. 

This  was  an  application  to  the  Superintendent  for  his  direc- 
tion in  a  case  in  which  a  large  majority  of  the  inhabitants  of  the 
district  observed  Saturday  as  holy  time,  and  the  teacher  being  of 
the  same  religious  sect,  kept  his  school  open  on  Sunday  and  dis- 
missed it  on  Saturday. 

By  John  A.  Dix,  November  18, 1833.  The  laws  of  this  state 
recognize  Sunday  as  a  day  of  public  observance,  by  prohibiting 
the  execution  of  civil  process,  pastimes,  (fcc.  and  travelling,  ex- 
cepting for  necessary  or  charitable  purposes.  Servile  labor  is  also 
interdicted,  excepting  to  those  who  uniformly  keep  the  last  day  of 
the  week  (Saturday)  £is  holy  time.  Such  persons  may  u ndoubted- 
ly  have  a  school  on  Sunday,  provided  it  is  kept  under  such  circum- 
stances as  not  to  disturb  other  persons  in  their  observance  of  the 
first  day  of  the  week  (Sunday)  as  holy  time ;  but  they  cannot 
under  the  provisions  of  the  law,  compel  the  latter  to  contribute 
in  any  manner  to  ite  support.  If  a  teacher  keeps  his  school  open 
on  Sunday,  those  whose  children  attend  pay  him  for  that  day ; 
but  if  he  teaches  from  Monday  morning  till  Friday  night,  he 
ought  not  to  be  deprived  of  the  public  money  because  he  teaches 
on  Sunday  also.  This  is  altogether  too  unimportant  a  matter 
either  for  the  interposition  of  the  Superintendent,  or  for  any  con- 
tention among  yourselves.  The  teacher  would  be  entitled  to  th« 
pubUc  money  for  five  days  in  the  week,  and  as  the  inhabitants 
pay  towards  the  balance  of  his  wages,  after  applying  the  public 
money,  for  so  much  time  only  as  their  children  attend  school,  it 
seems  to  me  that  there  is  no  hardship  or  injustice  in  the  matter. 


superintendent  op  common  schools.  139 

(anonymous.) 

On  certain  holidays  schools  may  be  dismissed. 

By  John  A.  Dix,  November  21,  1833.  The  holidays  on 
which  a  teacher  may  dismiss  his  school,  are  such  as  it  is  custo- 
mary to  observe  throughout  the  country:  as  the  fourth  of  July, 
Thanksgiving  and  New- Year.  But  these  matters  are  not,  it 
seems  to  me,  of  sufficient  importance  to  give  rise  to  any  contro- 
versy between  the  trustees  and  teacher,  by  insisting  on  either  side 
with  too  much  tenacity  upon  any  particular  day  beyon  1  those 
above  mentioned.  If  it  were  usual,  for  instance,  in  the  neigh- 
borhood, to  dismiss  school  to  enable  the  children  to  attend  some 
local  celebration,  a  proper  liberality  should  be  exercised  towards 
the  teacher  in  that  respect. 

The  inhabitants  of  school  district  No.  1  in  the  town 
of  Hunter,  against  the  Trustees  of  said  district. 

Coloured  persons  ought  not  to  be  employed  to  teach  white  children. 

This  was  an  appeal  by  some  of  the  inhabitants  of  school  dis- 
trict No.  1  in  the  town  of  Hunter,  from  the  proceedings  of  the 
trustees  of  said  district,  in  employing  a  coloured  man  to  teach 
the  district  school,  which  was  attended  almost  exclusively  by 
white  children. 

By  John  A.  Dix,  November  25,  1833.  The  law  is  alent  as 
to  the  description  of  persons  to  be  employed  as  teachers,  and  it 
is,  therefore,  a  matter  wholly  in  the  discretion  of  the  trustees. 
At  the  same  time  I  consider  the  employment  of  a  coloured  per- 
son to  teach  a  school  of  white  children  as  an  unjustifiable  exer- 
cise of  authority,  unless  the  parties  concerned  waive  their  objec- 
tions to  it.  It  is  unnecessary  to  inquire  whether  public  opinion, 
with  regard  to  the  admission  of  these  persons  to  the  enjoyment 
of  all  the  social  privileges  of  the  whites,  is  well  grounded  or  not. 
It  is  enough  that  a  distinction  exists;  that  they  are  disqualified 
by  the  laws  of  the  United  States  for  the  performance  of  services 
in  the  militia,  and  by  the  constitution  of  this  state  for  the  exercise 
of  the  right  of  suffrage,  without  a  qualification  of  property. 

Under  these  circumstances  the  trustees  of  school  districts, 
whose  duty  it  is  to  cultivate  a  spirit  of  harmony  and  good  feel- 
ing, by  carrying  into  eflfect  as  far  as  is  proper  the  wishes  of  the 
inhabitants,  should  abstain  from  employing  them  in  the  capacity 
of  teachers.  If  the  trustees  persist  however,  notwithstanding  the 
objections  on  the  part  of  the  inhabitants,  I  see  no  remedy  for  it, 
until  the  annual  election  of  district  officers  occurs,  when  others 
may  be  elected  in  their  place.  They  may  pay  the  teacher  the 
public  money  for  his  wages  as  far  as  it  goes,  and  the  residue  must 


140  CASES    DECIDED   BY   THE 

be  collected  from  those  who  send  to  school.     No  inhabitant  can 
of  course  be  compelled  to  send  his  children. 

The  Clerk  of  school  district  No.  9  in  the  town  of 
Penfield,  ex  parte. 

Rule  of  taxation  in  relation  to  real  estate  purchased  after  the  formation  of  a 
school  district  applied  to  certain  cases. 

By  John  A.  Dix,  November  25,  1833.  I  have  received  your 
letter  of  the  12th  inst.  containing  certain  queries,  which  are  here- 
with subjoined,  together  with  the  answers  required. 

1st.  "  Since  the  last  alteration  in  our  district  lines  a  person 
living  in  another  district  purchased  a  small  farm,  about  40  acres, 
adjacent  to  our  district  line,  having  thereon  a  log  house,  in  which 
no  one  now  resides:  he  afterwards  purchsed  a  small  farm  not  lar 
from  the  same  size,  adjoining  said  40  acres  on  our  side  of  the  line, 
which  had  on  it  a  frame  barn  and  log  house,  which  is  also  with- 
out an  occupant,  all  of  which  he  cultivates  by  his  own  and  hired 
labor,  and  the  whole  of  the  land  being  only  contracted  to  the 
original  settlers  has  been  since  conveyed  to  the  present  purchaser 
in  one  deed.  Q,uery.  Where  is  that  part  of  said  land  which  lies 
in  No.  9  taxable?  in  number  9,  (our  district,)  or  in  number  12, 
(the  residence  of  the  owner?)" 

Answer.  That  part  of  the  land  which  lies  in  No.  9  is  taxable 
in  that  district.  The  rule  has  long  been  established  by  the  Su- 
perintendent of  Common  Schools  that  the  lines  of  school  districts, 
when  once  fixed,  cannot  be  altered  by  subsequent  purchases. 

2d.  "  The  owner  of  a  farm  in  another  district  adjoining  our 
district  line  purchased  a  farm  of  100  acres  in  our  district  adjoin- 
ing his  farm,  then  sold  the  buildings  and  about  half  the  land, 
retaining  that  part  adjoining  his  own  and  working  it  as  a  part 
(rf  his  farm:  are  said  lands  still  taxable  in  our  district?" 

Answer.  This  question  is  also  answered  by  the  principle  above 
referred  to,  in  my  answer  to  query  No.  1,  if,  as  stated  in  the 
postscript  in  your  letter,  the  purchase  was  made  after  the  orga- 
nization of  your  school  district. 

3d.  "A  piece  of  land,  say  20  acres,  in  our  district,  adjoining 
the  district  line  and  cornering  on  a  farm  out  of  this  district,  was 
purchased  and  is  now  occupied  by  the  owner  of  said  farm,  living 
in  another  district:  where  is  said  20  acre  piece  to  be  taxed?" 

Answer.  This  land,  like  the  lots  referred  to  in  the  two  pre- 
ceding queries,  is  taxable  in  your  district,  if,  as  is  stated  in  the 
postscript  of  your  letter  with  regard  to  this  also,  the  purchase  wa.? 
made  after  the  formation  of  the  district.  The  object  of  the  rule, 
which  applies  equally  to  all  these  cases,  and  which  is  considered 
not  inconsistent  with  the  provisions  of  the  statute,  was  to  prevent 


SUPERINTENDENT    OF   COMMON    SCHOOLS.  141 

small  districts  from  being  broken  up  by  those  changes  which 
are  constantly  occurring  in  the  ownership  of  real  estate. 

The  Trustees  of  school  district  No.  6  in  the  town  of 
Lincklaen,  ex  parte. 

A  certificate  of  qualification  signed  by  two  inspectors  is  good,  if  there  are  only 
two  persons  in  the  town  authorized  to  act  as  such. 

This  was  a  case  in  which  two  of  the  commissioners  of  com- 
mon schools  of  the  town  of  lancklaen  had  removed  out  of  town, 
and  two  of  the  inspectors  were  engaged  in  another  town  in  keep- 
ing school,  so  that  there  were  in  the  town  but  two  persons  who 
were  authorized  to  inspect  teachers.  The  question  submitted 
was  whether  a  certificate  signed  by  them  was  a  sufficient  com- 
pliance with  the  law. 

By  John  A.  Dix,  December  11,  1833.  A  teacher's  certifi- 
cate should  be  signed  by  three  inspectors.  But  where  there  are 
only  two  individuals  in  the  town  authorized  to  act  as  such,  their 
certificate  as  to  his  qualifications  must,  from  the  necessity  of  the 
cstse,  be  deemed  sufficient,  and  he  will  be  considered  to  all  in- 
tents a  qualified  teacher. 

John  Oakley,  a  Trustee  of  school  district  No.  12  in 
the  town  of  Schroon,  ex  parte. 

The  time  and  place  for  the  annual  meeting  not  having  been  fixed,  it  may  be  held' 

at  the  usual  time  and  place. 
Trustees  may  give  notice  of  a  meeting  when  the  cleric  refuses  to  do  so. 

John  Oakley  was  elected  clerk  of  school  district  No.  1-2,  in  the 
town  of  Schroon,  at  the  annual  meeting  for  the  year  1832;  when 
by  mistake  the  time  and  place  for  the  next  annual  meeting  were 
not  appointed.  As  the  usual  time  approached,  the  trustees  di- 
rected Mr.  Oakley  to  give  the  customary  notices,  which  he  de- 
clined to  do,  on  the  ground  that  a  special  meeting  was  necessary 
in  consequence  of  the  omission  of  the  inhabitants,  at  their  last 
annual  meeting,  to  designate  the  time  and  place  for  the  next. 
The  trustees  then  put  up  notices  themselves  for  an  annual  meet- 
ing, and  it  was  held  at  the  usual  time  and  place,  and  Mr.  Oak- 
ley, contrary  to  his  earnest  remonstrances,  was  elected  a  trustee. 
The  opinion  of  the  Superintendent,  as  to  the  legality  of  the  pro- 
ceedings referred  to,  was  solicited. 

By  John  A.  Dix,  December  12,  1833.  If  at  an  annual 
ineeting  of  the  inhabitants  of  a  school  district,  the  time  and  place 
for  holding  the  next  are  not  fixed,  and  if  at  the  expiration  of 
the  year  for  which  the  district  officers  were  elected,  a  meeting  is 
held  and  an  election  had  at  the  usual  time  and  place,  the  Super- 


142  caseSDI^iBed  by  the 

intendent  has  always  treated  the  proceedings  as  valid,  notwith- 
standing the  want  of  formahty  in  the  adjournment  at  the  previ- 
ous annual  meeting.  There  should,  however,  be  no  surprise 
on  the  part  of  the  inhabitants :  otherwise  he  would,  on  applica- 
tion, set  aside  the  proceedings  and  afford  the  necessary  relief  by 
ordering  a  new  election.  Although  the  law  does  not  expressly 
provide  that  the  trustees  of  a  school  district  may  give  notice  of  a 
meeting  when  the  clerk  refuses,  yet  I  think  this  one  of  those  ca- 
ses, in  which  they  may  act  with  propriety.  The  law  does  not, 
of  course,  suppose  that  the  clerk  will  refuse  to  act,  even  though 
the  cause  should  be  a  doubt  as  to  the  propriety  of  acting  in  a 
given  case.  In  strictness  the  trustees  should  have  given  the  clerk 
a  written  direction  to  issue  notices  for  the  meeting,  but  the  law 
does  not  make  a  written  order  necessary,  and  so  far  as  the  clerk 
is  concerned,  he  would  have  been  justifiable  in  acting  and  giving 
a  written  notice  upon  the  verbal  order,  which  he  received.  Upon 
the  whole,  although  Mr.  Oakley  may  appeal,  and  if  he  should  do 
so  I  shall  investigate  the  case  and  decide  it  upon  the  proof,  as  strict 
justice  may  require,  yet  as  there  is  no  special  grievance  or  injury, 
I  think  he  had  better  acquiesce  in  the  proceedings.  He  may  not 
be  very  much  benefited  by  the  trust  to  which  his  neighbors  have 
elected  him,  and  perhaps  the  discharge  of  his  duties  may  give  him 
some  small  inconvenience;  but  these  trifling  sacrifices  should  be 
met  in  a  spirit  of  accommodation ;  and  certainly  an  election  to  an 
office  which  enters  so  much  into  the  interests  of  one's  neighbors, 
is  a  mark  of  confidence,  however  little  it  may  be  appreciated,  for 
which  the  individual  thus  complimented  has  no  right  to  take  of- 
fence. I  think  Mr.  Oakley  had  better  offset  the  compliment  to 
the  grievance  and  let  the  matter  rest. 

The  Trustees  of  school  district  No.  7  in  the  town 
of  Lexington,  ex  parte, 

A  hnstee  of  a  school  district  cannot  be  clerk  or  collector. 

The  oflacers  of  clerk  and  collector  may  be  held  by  the  same  person,  although  the 

intention  of  the  law  would  be  better  answered  by  conferring  them  on  different 

individuals. 
A  person  exempt  from  a  tax  by  reason  of  performing  military  services,  may  vote 

at  school  district  meetings  notwithstanding  such  exemption,  if  the  payment  of 

the  tax  would  have  given  him  a  right  to  vote. 
A  distinct  possession  carries  with  it  a  liability  to  taxation. 
A  school-house  being  abandoned,  and  the  right  of  occupancy  failing  with  it,  a 

new  site  may  be  chosen  by  a  majority  of  votes. 

This  was  an  application  to  the  Superintendent  for  his  opinion 
as  to  several  questions,  the  subject  matter  of  which  will  be  appa- 
rent from  the  answers. 

By  John  A.  Dix,  December  30,  1833.  A  trustee  of  a  school 
district  cannot  be  clerk  or  collector.     The  law  does  not  in  ex- 


SUPERINTENDENT    OF   COMMdN   SCHOOLS.  143 

press  terms  disqualify  a  trustee  for  holding  either  of  those  offices ; 
yei  it  is  manifest  from  the  nature  of  the  duties  annexed  to  them 
that  they  must  be  held  by  different  persons.  The  same  objec- 
tion does  not  apply  to  the  offices  of  clerk  and  collector,  which 
may  be  held  by  the  same  person  ;*  but  at  the  same  time  as  the 
law  has  created  separate  offices,  it  is  better  to  carry  out  its  inten- 
tion strictly  by  conferring  them  on  different  individuals. 

If  a  person  is  exempted  from  the  payment  of  a  tax  by  reason 
of  having  performed  certain  military  duties,  he  is  not  to  be  deem- 
ed disqualified  thereby  for  the  exercise  of  any  right  which  the 
payment  of  the  tax  would  have  secured  to  him.  He  is  to  be 
considered  as  having  paid  it  in  another  mode,  the  exemption  be- 
ing in  fact  the  price  of  other  services  rendered  by  him. 

If  a  man  has  a  farm  lying  in  two  school  districts,  and  has  se- 
veral tenants,  paying  him  a  specific  rent,  residing  on  different 
parts  of  it,  the  tenants  must  be  taxed  in  the  districts  in  which 
they  reside  respectively,  for  so  much  as  is  possessed  by  them. 
Whether  the  owner  pays  the  tax  to  the  town  on  the  whole,  or 
not,  is  of  no  consequence.  A  distinct  possession  carries  with  it  a 
liability  to  taxation  for  school  district  purposes  in  the  district  in 
which  the  part  separately  possessed  lies.  It  is,  for  all  such  pur- 
poses, to  be  deemed  a  distinct  farm. 

If  a  school-house  becomes  unfit  for  use,  and  is  abandoned,  and 
the  right  to  the  site  determines  with  such  abandonment  of  the 
building,  the  district  is  to  be  regarded  as  destitute  of  a  site,  and 
a  new  one  may  be  designated  by  a  majority  of  votes. 

The  Trustees  of  school  district  No.  4  in  the  town  of 
Butternuts,  ex  parte. 

Warrants  annexed  to  tax -lists  and  rate-bills,  are  to  be  executed  in  the  same  man- 
ner as  warrants  issued  to  the  collectors  of  towns. 

Any  goods  and  chattels  lawfully  in  possession  of  a  person  assessed  to  pay  a  tax, 
may  be  taken  by  the  collector  of  a  school  district. 

This  was  an  application  to  the  Superintendent  for  his  con- 
struction of  the  laws  referred  to  in  his  answer. 

By  John  A.  Dix,  December  30,  1833.  All  warrants,  whe- 
ther issued  for  the  collection  of  school  bills  or  taxes  are  to  be 
made  out  in  the  same  manner  as  is  provided  bv  section  2,  of  the 
act  of  April  21,  1831,  and  by  the  act  of  April  26,  1832,  they 
liave  the  same  effect. 

Property  exempt  from  taxation  under  the  general  law  is  ex- 

*  The  supreme  court  in  the  case  of  Rowland  vs.  Luce,  16  Johnson,  135,  held 
that  there  was  no  prohibition  in  the  common  school  act  "  to  confer  the  offices  of 
district  collector  and  clerk  on  the  same  person,"  and  that  there  was  ♦'  no  in- 
compatibility in  the  offices." 


144  CASES    DECIDED    BY    THE 

'  empt  from  taxation  for  common  school  purposes;  but  any  goods, 
or  chattels  lawfully  in  the  possession  of  the  person  on  whom  a 
a  tax  is  assessed,  may  be  taken  by  distress  and  sold  for  non- 
payment of  the  tax  under  a  warrant  issued  for  its  collection,  al- 
though the  person  be  not  the  owner  of  the  goods  or  chattels. 
There  is  no  distinction  as  to  extent  and  effect  between  a  w^arrant 
issued  by  the  supervisors  of  a  county  to  a  collector  of  a  town  and 
a  warrant  issued  by  the  trustees  of  a  school  district  to  the  collec- 
tor of  the  district.* 

The  Commissioners  of  Common  Schools  of  the  town 
of  Fishkill,  ex  parte. 

In  appraising  the  school-house  and  property  of  a  district  lying  partly  in  two  towns 
the  commissioners  of  both  must  unite. 

The  apportionment  of  the  value  of  the  school-house  and  other  property  of  a  dis- 
trict need  not  be  filed  with  the  town  clerk  in  order  to  give  validity  to  the  pro- 
ceedings. 

This  was  an  application  for  the  opinion  of  the  Superintendent 
in  relation  to  two  enquiries,  the  subject  matter  of  which  is  ex- 
plained by  his  answer. 

By  John  A.  Dix,  January  2,  1833.  If  a  joint  district  is  di- 
vided for  the  formation  of  a  new  district,  the  commissioners  of 
both  towns  should  appraise  the  property  ;  or  if  a  new  district  is 
formed  from  districts  lying  in  two  or  more  towns,  a  majority  of 
the  commissioners  of  all  the  towns  must  appiaise  the  property 
of  the  districts  affected  by  the  alterations  made.  The  act  relat- 
ing to  common  schools,  sections  67  and  68,  requires  that  the 
value  of  the  property  shall  be  ascertained  "at  the  time,"  (kc.  by 
the  commissioners.  The  formation  of  the  new  district,  the  ap- 
praisement, <fec,  constitute  one  proceeding,  and  all  the  persons, 
to  whom  authority  is  given  to  perform  the  acts  referred  to,  must 
unite  in  them. 

It  is  not  indispensable  to  the  validity  of  the  appraisement,  that 
the  apportionment  of  the  value  of  the  property  should  be  filed  with 
the  town  clerk.  It  must  be  handed  to  the  trustees  of  the  districts 
affected  by  the  proceedings  of  the  commissioners,  and  the  latter 
ought  also  to  make  their  clerk  put  it  on  record.  But  their  omis- 
sion to  do  so  will  not  rendef  the  proceeding  void. 

•  The  principle  of  this  decision  was  settled  by  the  supreme  court  in  the  case 
of  Keeler  and  others  vs.  Chichester,  13  Wendell,  629,  pronounced  in  the 
year  1835.  The  court  held  that  "  any  property  found  in  the  possession  of  the 
person  liaye  to  pay  the  tax,  might  be  taken  and  applied  to  the  payment  of  such 
tax"  by  a  town  collector,  and  that  the  collector  of  a  school  district  "  was  cloth- 
ed with  the  same  powers  as  the  collectors  of  towns  in  collecting  town  and  coun- 
ty taxes." 


euperintetvdent  op  commotst  schools.  145 

■  ''•■ '  ■  (anonymous.) 

A  teacher  may  employ  necessary  means  of  correction  to  "maintain  order;  but  he 
should  not  dismiss  a  scholar  from  school  with«ut  consultation  with  the  trustees. 

By  John  A.  Dix,  January  2,  1834.  A  teacher  must,  for 
the  purpose  of  maintaining  proper  order  and  discipHne  in  his 
school,  have  a  right  to  employ  such  means  of  correction  as  he 
may  deem  necessary  to  the  acconipHshment  of  the  Object.  For 
any  unrnecessary  or  excessive  severity  he  would  be  answerable 
in  damages  in  a  suit  at  law  to  the  person  aggrieved. 

A  teacher  ought  not,  I  think,  to  dismiss  a  scholaT  from  school. 
From  the  nature  of  the  common  school  system,  teachers  are,  as 
a  general  rule,  bound  to  receiv^e  and  instruct  all  children  sent 
to  them.  If  a  scholar  is  so  refractory  that  he  cannot  be  manag- 
ed, and  his  dismission  becomes  necessary  to  the  preservation  of 
order,  I  think  the  teacher  should  lay  the  matter  before  the  trus- 
tees for  their  direction  :  but  not  until  the  ordinary  means  of  cor- 
rection had  been  folly  tried  and  foimd  unavailing. 

The  Inspectors  of  Common  Schools  of  the  town  of 
Moravia,  ex  parte. 

In  districts  lying  partly  in  two  or  more  towns  the  inspectors  of  either  town  may 
give  a  certificate  to  a  teacher,  and  the  inspectors  ot  any  one  of  the  other  towns 
may  annul  it. 

In  districts  lying  wholly  in  one  town,  three  inspectors  may  give  a  certificate  and 
the  other  three  may  annul  ft. 

This  was  an  application  for  the  opinion  of  the  Superintendent 
in  a  case,  where  the  inspectoj-s  of  one  town  had  certified  to  the 
qualifications  of  a  teacher  in  a  district  lying  partly  in  that  town 
and  one  adjoining,  and  the  inspectors  of  the  latter  soon  after- 
wards annulled  the  certificate. 

By  John  A.  Dix,  January  3,  1834  The  certificate  of  the 
inspectors  of  one  town  as  to  the  qualifications  of  a  teacher  of  a 
school  in  a  joint  district  is  good;  and  the  inspectors  of  djny  other 
town,  of  which  the  district  forms  a  part,  may  annul  it.  I  can- 
not, under  the  terms  of  the  act  relating  to  common  schools,  bring 
my  mind  to  any  other  conclusion. 

In  districts  lying  wholly  in  one  town,  three  inspectors  (under 
this  name  I  include  the  commissioners)  may  give  a  certificate, 
and  three  may  revoke  it,  or  three  may  renew  a  certificate  when 
it  has  been  revoked,  although  they  may  not  be  the  same  persons 
in  these  several  cases. 

Collisions,  I  am  aware,  may  arise  under  this  construction  of 
the  law  between  the  inspectors.  But  such  collisions  will  not  be 
presumed;  and  if  they  do  occur,  they  must  be  put  at  rest,  like 

10 


146  CASES    DECIDED   BY   THE       '    .. 

ail  Other  controversies  arising  under  the  act  relating  to  common 
i*chools,  by  an  appeal  to  the  Superintendent.* 

(anonymous.) 

An  omission  to  record  an  alteration  in  a  school  district  does  not  render  the  pio- 

ceeding  void. 

By  John  A.  Dix,  Januaty  13,  1834.  An  omission  to  put 
on  record  an  alteration  in  the  bounds  of  a  school  district  does  not 
affect  the  validity  of  the  proceeding,  but  the  defect  may  be  sup- 
plied at  a  subsequent  day  by  recording  the  order  of  the  com- 
missioners. 

(anonymous.) 

Commissioners  of  common  schools  are,  to  all  intents,  inspectors. 

By  John  A.  Dix,  January  13,  1834.  Commissioners  of 
common  schools  are,  by  virtue  of  their  office,  inspectors  of  com- 
mon schools.  Tliere  is  no  distinction  whatever  between  them 
and  the  persons  elected  as  inspectors,  so  far  as  the  visitation  and 
inspection  of  schools  and  the  examination  of  teachers  are  con- 
cerned. They  are  all  inspectors,  as  strictly  so  as  if  they  had  all 
been  elected  by  that  name  :  and  their  rights  and  powers  as  such 
are,  of  course,  the  same. 

The  Trustees  of  school  district  No. in  the  town 

of  Sing-Sing,  ex  parte. 

If  a  district  has  had  no  clerk  or  record  for  two  years,  it  is  not  for  that  reason  dis- 
solved. 
An  election  need  not  be  held  in  the  day  time. 

This  was  an  application  for  the  opinion  of  the  Superintendent 
as  to  the  effect  of  an  omission  on  the  part  of  the  inhabitants  of  a 
district  for  two  successive  years  to  choose  a  clerk,  in  consequence 
of  which  neglect  no  records  or  minutes  of  proceedings  had  been 
kept.  He  was  also  desired  to  state  whether  an  election  of  district 
officer  could  be  held  except  in  the  day  time. 

By  John  A.  Dix,  January  13,  1834.  If  a  district  has  had 
no  clerk,  and  no  minutes  have  been  kept  for  two  years,  it  is  ^a 
gross  irregularity :  but  it  is,  nevertheless,  not  to  be  considered  as 
working  a  dissolution  of  the  district.  The  true  remedy  is  to  elect 
a  clerk  and  proceed  regularly  for  the  future. 

It  is  not  necessary  that  an  election  of  officers  for  a  school  dis- 
trict should  be  held  in  the  day  time. 

•  See  the  case  submitted  by  the  inspectors  of  common  schools  of  the  town  ©f 
Ballston,  page  33. 


SUPERINTENDENT    OF   COMMON    SCHOOLS.  147 

Caleb  N.  Potter  and  others,  against  the  Commission- 
ers of  Common  Schools  of  the  town  of  Skaneate- 
les,  and  the  Trustees  of  joint  school  district  No.  4 
in  Marcellus  and  Skaneateles. 

An  inhabitant  being  set  off  from  aschoo!  district,  it  is  an  altered  district,  and  the 
site  of  the  school-house  may  be  changed  by  a  majority  of  votes. 

An  alien  cannot  be  an  officer  of  a  school  district. 

Commissioners  should  not  fill  a  vacancy  in  an  office  in  a  school  district,  unless 
the  district  neglects  to  fill  it  for  one  month  after  knowing  that  it  has  occurred. 

Vacancies  in  district  offices,  when  the  district  lies  in  more  than  one  town,  must 
iie  filled  by  the  commissioners  of  both  towns. 

The  facts  connected  with  this  appeal,  are  stated  in  the  deci- 
sion of  the  Superintendent. 

By  John  A.  Dix,  January  31,  1834.  On  examination  of 
the  appeal  of  Caleb  N.  Potter  and  others,  from  various  proceed- 
ings of  the  commissioners  of  common  schools  of  the  town  of  Ska- 
neateles, and  of  the  trustees  of  school  district  No.  14  in  Marcellus 
and  Skaneateles,  to  which  said  appellants  belong,  it  appears  : 

1st.  That  the  inhabitants  of  said  district  in  January  or  Fe- 
bruary, 1833,  by  a  majority  of  votes  altered  the  site  of  the  school- 
house. 

The  legality  of  this  proceeding,  which  is  objected  to  by  the  ap- 
}>ellants  as  unauthorized  and  void  under  the  act  of  17th  Februa- 
ry, 1831,  depends  wholly  upon  the  fact  whether  the  district  has 
been  altered  since  the  school-house  was  built  or  purchased,  for  if 
it  hag  been,  a  change  of  the  site  by  a  majority  of  votes  is  valid, 
without  the  consent  of  the  commissioners  of  common  schools. 

It  appears  by  the  old  record  of  the  town  of  Marcellus  in  the 
office  of  the  town  clerk  of  Skaneateles,  that  Zail  Conover  was 
taken  from  district  No.  13,  Skaneateles,  on  the  I2th  of  March, 
1830,  and  annexed  to  district  No.  14.  The  existence  of  this  re- 
cord is  admitted  by  the  appellants.  The  persons  who  were  trus- 
tees of  district  No.  14  at  that  time,  swear  that  they  were  notified 
of  the  alteration  and  consented  to  the  same,  and  the  consent  of 
the  trustees  of  district  No.  13  is  a  part  of  the  record  referred  to. 
The  admission  on  the  part  of  the  appellants  taken  in  connexion 
with  the  testimony  of  the  trustees,  is  conclusive  against  the  ap- 
pellants on  the  first  point.  It  is  alleged,  it  is  true,  that  the  order 
making  the  alteration  does  not  appear  in  the  office  of  the  town 
clerk  of  Marcellus;  but  the  old  record  of  the  town  shows  that  it 
was  recorded  at  the  proper  time;  and  if  the  record  was  transfer- 
red to  the  town  of  Skaneateles,  it  was  not  necessary  that  the  or- 
der should  be  recorded  in  Marcellus  after  its  organization  as  a 
new  town.  The  fact  that  it  was  recorded  in  the  old  town,  a  fact 
admitted  by  the  appellants,  is  sufficient  evidence  of  its  having 
been  regularly  made  by  the  commissioners  of  common  schools. 


148        ,  CASraS   DECIDED   BY   THE 

The  right  of  the  commissioners  of  common  schools  of  Marcellus 
to  make  the  alteratioa,  was  perfect.  The  act  of  Febrwary  26, 
1830,  organizing  the  town  of  Skaneateles,  provided  that  the  first 
town  meeting  in  the  town  of  Marcellus.  after  its  division,  should 
be  held  on  the  last  Tuesday  of  April,  1830,  and  that  the  first 
town  meeting  in  the  town  of  Skaneateles  should  be  held  on  the 
same  day. 

The  Revised  Statutes,  vol.  1,  page  157,  sec.  12,  provide  that 
every  law,  unless  a  diflTexent  time  shall  be  designated  therein, 
shall  commence  and  take  effect  on  the  twentieth  day  after  its 
passage.  The  act  of  the  26th  February,  1830,  referred  to,  is 
silent  as  to  the  time  when  it  was  to  go  into  operation,  and  it 
would,  therefore,  take  effect  on  the  18th  of  March.  For  some 
purposes  Skaneateles  would  be  considered  a  separate  town  on 
that  day:  but  it  may  be  fairly  contended  that  the  local  authori- 
ties of  the  town  of  Marcellus  might  exercise  jurisdiction  over  both 
towns  until  new  officers  were  chosen  for  both.  Otherwise  it  is 
manifest  that  no  competent  authority  would  exist  in  the  former 
town  during  the  period  intervening  the  time  at  which  the  law 
erecting  it  went  into  effect,  and  the  day  appointed  for  the  town 
meeting,  to  provide  for  the  execution  of  the  laws.  But  even  if 
the  authority  of  the  commissioners  of  Marcellus  over  the  com- 
mon schools  in  Skaneateles  ceased  on  the  day  the  act  erecting 
the  latter  took  effect,  they  were  competent  to  act  until  the  18th, 
and,  therefore,  the  alteration  referred  to  on  the  12th  was  valid 
and  went  injto  operation  immediately^  the  trustees  of  the  districts 
having  given  their  consent. 

A  legal  alteration  in  the  boundaries  of  district  No.  14  having 
thus  been  made  after  the  school-house  was  built,  the  provisions 
of  the  act  of  February  17,  1831,  are  inapplicable  to  the  case. 

2d.  It  is  objected  by  the  appellants,  that  Merick  Bradley  and 
Henry  EUery,  two  of  the  trustees  of  said  district,  (Benjamin  Nye, 
the  third  trustee,  dissenting;)  sojd  the  school-house  on  the  ninth 
November  last.,  pursuant  to  a  vote  of  the  inhabitants  on  the  7th 
of  October. 

No  testimony  is  produced  to  show  that  the  proceedings  of  the 
meeting  at  which  the  vote  to  sell  the  school-house  was  taken, 
were  irregular  or  void,  and  it  is  clearly  sliown  that  public  notice 
of  the  sale  was  given,  though  such  notice  is  not  required  by 
law^. 

It  is  objected,  however,  that  Ellery,  being  an  alien,  was  inca- 
pable of  holding  office,  that  his  acts  were  void,  and  as  a  ne- 
cessary consequence  that  the  sale  by  Bradley  against  the  con- 
sent of  Nye,  was  not  valid.  Whether  Ellery  was  incapable  of 
holding  office  or  not,  is  of  no  consequence  so  far  as  the  validity 
of  his  acts  is  concerned.    It  is  suffioi,ent  that  he  was  dected  a. 


SXJPERINTE^NDEKT    OF    COMMON   SCHOOLS.  149 

trustee  at  a  regular  meeting  of  the  district.  He  was  an  officer 
de  facto,  and  his  acts,  so  far  as  the  public  and  third  persons 
having  an  interest  in  them  are  concerned,  were  good,  until  his 
incapacity  to  hold  office  was  determined,  and  a  new  election  or- 
dered by  some  competent  authority.  The  sale  of  the  school- 
house  by  Bradley  and  Ellery,  in  pursuance  of  the  vote  of  the 
meeting  was,  therefore,  valid. 

With  regard  to  the  eligibility  of  Elfery  to  hold  the  office  of  trus- 
tee, the  Superintendent  concurs  \vith  the  commissioners  in  the 
opinion  expressed  by  them-,  although  the  question  is  not  without 
difficulty.  It  is  provided  by  the  Revised  Statutes,  vol.  1,  p.  721, 
sec.  20,  that  "  every  alien  who  shall  hold  any  real  estate,  by  virtue 
of  any  of  the  foregoing  provisions,  shall  be  subject  to  duties,  assess- 
ments, taxes  and  burthens  as  if  he  were  a  citizen  of  this  state : 
but  shall  be  incapable  of  voting  at  any  election,  or  of  being  elect- 
ed or  appointed  to  any  office,  or  of  serving  on  any  jury."  The 
provisions  of  this  section  relate  to  aliens,  who,  under  certain  cir- 
cumstances, are  authorized  to  hold  real  estate,  and  they  have  in 
several  instances  been  construed  with  very  considerable  limitation 
of  their  terms.  Although  the  persons  embraced  by  it  are  "  sub- 
ject to  duties,  assessments,  taxes  and  burthens"  as  if  they  were 
citizens  of  this  state,  it  has  been  decided  by  the  proper  military 
authority,  that  they  cannot  be  lawfully  enrolled  in  the  militia, 
because  the  law  prescribing  the  organization  of  the  militia  does 
not  include  them  in  the  class  designated  as  subject  to  military 
duty.  Military  service  is  a  "  duty"  as  well  as  a  "  burthen ;"  yet 
the  general  provisions  of  the  section  above  quoted  have  been  so 
construed  as  not  to  conflict  with  the  special  provisions  of  law  re- 
gulating the  enrolment  and  organization  of  the  militia.  In  like 
manner  it  has  been  decided  by  the  Superintendent,  that  aliens 
may  vote  for  school  district  officers,  notwithstanding  the  gene- 
ral terms  of  the  section  above  quoted,  because  the  chapter  re- 
lating to  common  schools  prescribes  the  qualifications  of  voters, 
and  does  not  in  terms  exclude  aliens ;  and  because  it  was  con- 
ceived that  the  statute,  in  referring  generally  to  elections,  must 
be  construed  to  intend  such  as  are  provided  for  in  the  case  of 
state,  county  or  town  officers,  and  not  to  include  jurisdictions 
merely  local  and  organized  for  special  purposes.  If  the  chapter  re- 
lating to  common  schools  had  expressly  declared  what  the  quali- 
fications of  the  officers  of  school  districts  should  be,  the  question 
might  arise  whether  the  same  rule  of  construction  should  not  be 
adopted  with  regard  to  the  general  provision  in  the  section  above 
quoted,  as  to  the  capacity  of  the  persons  referred  to  in  it,  to  hold 
office  by  Umitiiig  it  to  such  "  public  or  civil  offices"  as  are  pro- 
vided by  the  Revised  Statutes.  But  as  the  chapter  relating  to 
common  schools  is  wholly  silent  with  regard  to  the  qualifications 


loO  CASES    DECIDED   BY   THE 

.fry...      -t-'.. 

of  school  district  officers,  it  would  be  assuming  too  broad  a  con- 
struction to  reject,  as  inapplicable  to  this  case,  a  provision  so  com- 
prehensive in  its  terms  as  necessarily  to  inclnde  all  offices  which 
are  in  any  manner  recognized  by  law  as  connected  with  the  ad- 
ministration of  the  municipal  or  local  concerns  of  the  citizens  of 
the  state. 

Independently  of  the  limitations  above  referred  to,  it  is  also  to 
be  consideied  that  the  section  in  question  applies  only  to  those 
aliens  "  who  shall  hold  any  real  estate  by  virtue  of"  certain  pro- 
visions therein  referred  to,  and  was  obviously  designed  to  pre- 
clude the  inference  that  the  class  of  aliens  to  which  it  applied 
should,  as  a  consequence  of  the  duties  and  burdens  of  citizenship 
which  it  imposed,  be  entitled  to  the  exercise  of  any  rights  not  spe- 
cially conferred  on  them.     If  the  exclusion  of  aliens  from  the  en- 
joyment of  the  rights  of  citizenship  denied  by  this  section  depended 
upon  this  provision  alone,  it  is  not  perceived  why  all  other  aliens 
excepting  the  class  referred  to  might  not  exercise  such  rights,  un- 
less they  were  specially  withheld  by  other  provisions.     The  inca- 
pacity of  aliens,  excepting  the  class  embraced  in  the  section 
above  quoted,  to  vote,  hold  offices  or  serve  as  jurors,  must  be 
found  in  other  provisions  of  law;  and  indeed  it  may  be  shown 
that  the  incapacity  of  the  class  referred  to,  so  far  as  voting  or 
holding  office  is  concerned,  would  have  been  the  same  if  the  lat- 
ter part  of  the  section  had  been  wholly  omitted.     Their  incapa- 
city to  vote  at  elections  of  public  officers  is  provided  for  by  sec- 
tion first,  title  first,  chap,  sixth,  and  section  first,  title  second, 
chap,  eleventh,  of  the  first  part  of  the  Revised  Statutes.     Their 
incapacity  to  hold  office  is  provided  for  by  section  first,  title  sixth, 
chap,  fifth,  and  section  eleventh,  title  third,  chap,  eleventh,  of 
part  first  of  the  Revised  Statutes.     It  is  also  a  principle  of  com- 
mon law  that  aliens  shall  be  incapable  of  holding  office  or  of  serv- 
ing on  juries;  and  if,  as  before  observed,  their  capacity  or  incapa- 
city depended  upon  tlie  section  above  quoted,  they  might  be  deem- 
ed capable  both  of  holding  office  and  serving  on  juries,  unless  they 
were  of  the  particular  class  to  which  that  section  refers.     The 
disqualification,  therefore,  contained  in  that  section  must  be  «on- 
stmed  to  intend  merely  that  the  particular  class  referred  to  shall 
not,  as  a  consequence  of  the  duties  of  citizenship  imposed  on 
them,  be  deemed  to  have  acquired  any  of  the  rights  denied  to 
them  by  that  section.     The  necessity  of  such  a  disqualification, 
80  far  as  serving  on  juries  is  concerned,  is  manifest,  since  such 
service  is  as  much  "a  duty  and  a  burthen"  as  a  right;  and 
might  have  been  exacted  under  the  first  part  of  the  section  but 
for  the  special  disqualification  provided  for  by  the  latter  part,  or 
'  unless,  upon  the  general  maxims  of  law,  it  was  wholly  inadmis- 
sible. 


SUPERINTENDENT    OP   COMMON    SCHOOLS.  151 

It  i&  therefore  conceived  that  the  broad  question  whether 
alienism  is  a  disqualification  for  voting  at  elections,  holding  of- 
rice  or  serving  on  juries,  is  not  determined  by  the  section  under 
rx)nsideration,  the  provisions  of  that  section  being  applicable  only 
to  a  special  class  of  cases ;  but  that  it  must  be  answered  by  a  re- 
sort to  other  provisions  of  law  of  greater  scope.  For  the  present 
purpose  it  is  only  necessary  to  consider  the  capacity  of  aliens  to 
hold  office.  It  is  a  well  established  principle  of  the  common 
law,  confirmed  by  many  statutory  provisions,  that  an  alien  i? 
incapable  of  holding  an  office.  This  principle  was  a  part  of  the 
(X)mmon  law  at  the  time  the  colonial  dependence  of  this  state 
upon  Great  Britain  was  thrown  ofT,  and  it  has  not  been  rescinded 
by  any  constitutional  or  legislative  provisions  since  that  period : 
although  many  acts  have  been  passed  in  confirmation  of  it  in  spe- 
cial cases.  It  may,  perhaps,  be  questioned  whether  school  district 
offices  are  of  such  public  concern  as  to  come  within  the  pnnciple 
of  exclusion  referred  to;  and  the  Superintendent  has  not  with- 
out diflficulty  come  to  the  conclusion  that  they  are  properly  em- 
braced by  it.  But  although  they  may  not  be  of  the  class  of 
public  or  civil  offices  for  which  the  statute  intends  to  provide ;  yet 
as  the  disqualification  of  aliens  at  common  law  is  without  limita- 
tion, and  as  the  qualifications  of  officers  of  school  districts  are  not 
prescribed  by  statute,  it  is  deemed  most  consistent  with  the  rules 
of  construction  to  consider  the  disqualification  referred  to  as  ex- 
tending to  every  office  which  has  a  connexion,  however  remote, 
with  the  municipal  or  local  concerns  of  the  citizens;  and  such  a 
connexion  may  be  found  in  the  duty  confided  to  the  trustees  of 
school  districts,  in  receiving  and  applying  to  the  specified  objects 
the  revenues  of  the  school  fund. 

On  these  grounds,  therefore,  the  Superintendent  concurs  with 
the  commissioners  in  the  opinion  given  by  them  with  regard  to 
the  ineligibility  of  Ellery  to  the  office  of  trustee. 
.  It  appears  by  the  affidavit  of  two  of  the  trustees  of  district 
No.  14,  that  application  was  made,  by  the  said  Ellery  and 
other  inhabitants  of  the  district,  to  the  commissioners  of  common  ^ 
schools  of  Skaneateles  to  give  their  opinion  thereon,  (his  capacity 
te  serve,)  and  to  appoint  a  new  tmstee  in  case  it  was  necessaiy 
or  ^proper ;  dnd  that  the  commissioners  decided  that  the  said 
Ellery  was  incompetent,  and  that  the  office  of  trustee  which  he 
filled  had  in  fact  been  vacant  fi-om  the  time  of  the  annual  meet- 
ing at  which  he  was  elected ;  and  thereupon  the  said  commis- 
sioners proceeded  to  fill  the  vacancy. 

If  the  commissioners  had  a  right  to  declare  the  office  vacant, 
it  is  the  opinion  of  the  Superintendent  that  they  should  have 
waited  one  month  after  announcing  their  decision,  for  the  inha- 
bitants of  the  district  to  supply  the  vacancy.     The  intention  of 


152  CASES    DECLDEn    BY    THR 

the  71st  section  of  the  act  relating  to  common  schools  is  to  con- 
fer on  the  commissioners  tlie  power  of  tilling  vacancies  by  ap- 
pointment, where  tlie  inhabitants  of  tlie  district  have  neglected 
to  avail  themselves  of  the  right  to  fill  them  by  election.  The 
constructioa  given  to  this  section  by  the  Superintendent  renders 
the  course  above  indicated  the  proper  one  to  be  pursued  in  all 
cases  where  vacancies-  exisL  EUery  was  elected  without  any 
suspicion,  so  far  as  is  shown,,  that  he  was  incapable  of  holding 
office;  and  it  is  manifest  from  the  application  subsequently  made 
to  the  commissioners  of  Skaneateles  for  their  opinion,,  that  his 
incapacity  was  a  matter  of  doubt  among  the  inhabitants  of  the 
district.  The  spirit  of  the  provisions  of  the  section  above  refer- 
red to  certainly  requires  that  a  district  should  have  one  month 
to  fill  a  vacancy  after  knowing  that  it  has  occurred. 

But  in  undertaking  to  make  the  appointment  at  all,  the  com- 
missioners of  Skaneateles  exceeded  their  powei&.  The  manifest 
intention  of  the  title  of  the  Revised  Statutes  relating  to  common 
schools  is,  that  in  all  matters  affecting  a  district  lying  parUy  in 
two  or  more  adjoining  towns,  the  commissioners  of  common 
schools  of  all  the  towns^  or  the  major  part  of  them,,  shall  con- 
cur. The  71st  section  of  the  title  referred  to,  it  is  true,  does  not 
in  express  terms  require  the  concurrence  of  such,  commissioners 
in  filling  a  vacancy  under  the  particular  circumstances  specified 
therein,  for  it  does  not  take  notice  of  joint  districts  at  all ;  and 
yet  by  giving  the  right  of  filling  vacancies,  undei'  certain  restric- 
tions, to  the  "commissioners  of  the  town"  in  which  the  district 
lies,  the  inference  is  a  reasonable  one  that  in  the  case  of  a  joint 
district  the  commissioners  of  all  the  towns  concerned  should  have 
a  voice  in  the  proceeding.  A  different  construction  would  be  at 
variance  with  the  whole  policy  of  the  law  in  relation  to  such 
districts ;  and  whenever  a  doubt  arises  as  to  the  intention  of  the 
law  in  a  case  not  specially  provided  for,  the  general  provision  in 
which  it  is  embraced  must  be  so  construed  as  to  consist  with  the 
tenor  of  other  provisions  affecting  the  exercise  of  the  same  class 
of  powei-s.  The  Superintendent  is  therefore  decidedly  of  the 
opinion  that  the  jurisdiction  of  the  commissioners  of  the  two 
towns  was  a  concurrent  and  not  a  separate  jurisdiction,  and  that 
the  act  of  the  commissioners  of  Skaneateles  in  the  case  referred 
to  was  null  and  void.  The  fact  that  EUery  resided  in  the  town 
of  Skaneateles  does  not  aflfect  the  principle. 

It  is  due  to  the  commissioners  of  Skaneateles  to  add,  that  the 
Superintendent  can  discover  nothing  in  the  testimony  presented 
by  the  appellants  to  justify  the  imputation  of  any  design  on  their 
part  to  assume  a  power  not  expressly  given  to  them.  The  case 
was  one  in  which  they  might  not  unreasonably  consider  them- 
selves authorized  to  interpose.    Nor  was  the  provision  of  law  un- 


SirPERIN^TENDENT    OF    COMMON    SCHOOLS.  153 

der  which  they  acted  in  appointing  Wyckoff,  altogethep  clear  in 
its  terms;  its  true  meaning  was  to  be  settled  by  construction,  and 
the  error  on  their  part  consisted  in  construing  it  in  a  manner  not 
consistent  with  other  provisions  relating  to  the  exercise  of  the 
same  class  of  powers^ 

3d.  It  is  a  matter  of  complaint  on  tlie  part  of  the  appellants 
that  the  trustees  of  district  No.  14  have  irefused  to  call  a  special 
meeting  of  the  inhabitants  for  the  purpose  of  consulting  w^ith 
regard  to  the  selection  of  a  new  site  and  the  erection  of  a  new 
school-house;  As  this  grievance  will  be  remedied  by  the  deci- 
sion of  the  Superintendent  on  other  points,  it  is  only  necessary 
to  remark  that  it  is  the  duty  of  the  trastees  to  call  a  special 
meeting  m  all  cases  whenever  it  'i»  requested  by  a  reasonable 
number  of  the  inhabitants ;  and  if  such  request  is  refused,  the 
Superintendent  wall  on  application  to  him  dkect  a  meeting  to  be 
held. 

It  is  hereby  ordered  tliat  the  sale  of  the  school-house  by  the 
trustees  of  said  school  district  No.  14  be  confirmed.  And  it  is 
declared,  that  the  appointment  of  Jonathan  Wyckoff  as  trustee 
of  said  school  district  by  tlie  commissioners  of  common  schools 
of  the  town  of  Skaneateles,  on  the  19th  day  of  November  last, 
is  null  and  void.  And  it  is  further  ordered,^  that  the  trustees  of 
said  school  district  proceed  to  call  a  special  meeting  of  the  tax- 
able inhabitants  for  the  purpose  of  filling  the  vacancy  occasioned 
by  the  incapacity  of  EUery  to  hold  office,  and  for  transacting 
such  other  business  as  the  said  inhabitants  shaU,  when  so  assem- 
bled, deem  necessary  and  proper.  • 

The  Trustees  of  school  district  No.  2  iti  the  town  of 
Bethel,  ex  parte. 

It  a  school  has  i^ot^in  cotisequence  of  any  overruling  necessity,  been  kept  three 
months  by  a  quahfied  teacher,  the  district  will  be  allowed  a  share  of  the  pub- 
•lic  money  on  appKcation  to  the  Superintendent. 

In  district  No.  2  in  the  town  of  Bethel  the  school-house  was 
accidentally  destroyed  by  fire.  A  tax  was  immediately  voted  to 
build  a  new  one,  and  a  contract  made  to  have  it  cempleted  in 
time  for  the  fall  term ;  but  in  consequence  of  the  failure  of  the 
contractor  to  fulfil  his  engagement,  a  school  was  only  kept  in  the 
district  two  months  and  twenty-two  days  by  a  qualified  teacher. 

By  John  A.  Dix,  February  7,  1834.  Where  it  has  been 
impossible,  in  consequence  of  any  overruling  necessity,  to  have 
a  school  taught  in  a  district  the  prescribed  period  of  three  months 
by  a  quaUfied  teacher,  the  Superintendent  has  directed  that  the 
pubUc  money  should,  notwithstanding,  be  paid  to  the  district  as 
though  there  had  been  a  strict  compliance  with  the  provisions  of 


V 


154  '    '    CAsSfe  'BecideiJ  %Y  rnK  '^»*i;r*i 

the  law.*  The  destruction  of  a  school-house  by  fire  may  not  be 
precisely  such  a  case,  because  a  room  might  possibly  have  been 
hired,  and  a  school  kept  the  prescribed  period.  But  as  the  defi- 
ciency is  for  a  very  few  days,  I  should  be  disposed,  on  a  formal 
representation  of  the  facts,  to  direct  the  commissioners  of  common 
schools  to  allow  the  district  public  money  next  spring,  unless 
there  appears  to  have  been  neghgence  on  the  part  of  the  district 
or  its  officers. 

The  Trustees  of  school  district  No.  4  in  the  town  of 
Maryland,  ex  parte. 

The  assessment  roll  kept  by  the  town  clerk  is  the  one  to  be  followed  in  assesai^ 

taxes. 

In  December,  1833;  the  trustees  of  school  district  No.  4  in  the 
town  of  Maryland,  called  on  the  assessors  and  procured  a  copy 
of  their  last  assessment  roll  for  the  purpose  of  assessing  a  tax 
to  build  a  school  house.  On  this  copy  they  found  the  name  of 
one  Pitts,  a  resident  of  said  district  No.  4,  whose  property  was 
assessed  at  $600,  and  he  was  included  in  the  tax  list.  Soon  af- 
terwards it  was  discovered,  by  referring  to  the  original  roll  in  the 
town  clerk's  office,  that  Pitts  had  been  accidentally  omitted ;  and 
the  question  presented  to  the  Superintendent  was,  whether  he 
was  properly  included  in  the  tax  list  made  out  as  aforesaid  by 
the  trustees. 

By  John  A.  Dix,  February  17,  1834.  The  last  assess- 
ment roll  of  the  tOwn,  which  is  to  be  consulted  when  taxes  are 
to  be  assessed  for  school  district  purposes,  is  the  one  required  by 
law  to  be  kept  by  the  town  clerk  for  the  use  of  the  town.  If 
this  roll  is  departed  from  in  assessing  a  tax  upon  the  inhabitants 
of  a  school  district,  notice  must  be  given,  as  directed  in  section 
80,  page  483,  1.  R.  S.  Mr.  Pitts,  if  a  resident  of  the  district 
and  holding  property,  is  clearly  liable  to  taxation,  whether  he  -is 
on  the  "last  assessment  roll  of  the  town"  or  not ;  but  if  he  was 
omitted  on  that  roll,  the  value  of  his  property  must  be  ascertain- 
ed by  the  trustees  in  the  manner  specified  in  the  section  above 
referred  to. '  I  think  the  warrant  ought  not  to  be  executed  ac- 
cording to  the  present  tax  list,  the  assessment  on  Mr.  Pitts  not 
having  been  made  in  the  manner  prescribed  by  the  statute,  un- 
less on  a  more  careful  examination  of  the  roll  in  the  town  clerk's 
office  his  name  appears  on  it.  But  unless  Mr.  Pitts  waives  ob- 
jections, and  consents  to  pay  the  amount  assessed  on  him,  (which 
he  may  as  well  do,  as  he  must  pay  at  last,)  you  will  be  erapow- 

*  See  the  cj^se  of  the  trustees  of  school  district  No.  4  in  tiie  to-.rn  of  Somerset, 
page  t\. 


SUPERINTENDENT  tiP"  CC^jiSSr*  SCHOOLS.  155 

ered  to  make  out  the  assessment  anew  on  application  to  the  Su- 
perintendent, with  notice  to  him,  (Mr.  P.)  In  doing  so,  you 
will  ascertain  the  value  of  his  property  from  the  best  evidence  in 
your  power,  giving  notice  as  required  by  sec.  80.  The  lapse  of 
time  will  work  no  prejudice  to  you,  as  the  decisions  of  the  Sn- 
perintendent  are  final,  and  under  the  authority  given  by  the  sta- 
tute he  has  always  exercised  a  discretion  in  allowing  errors  of 
proceeding  to  be  corrected  with  a  view  to  accomplish  the  ends  of 
justice. 

■..-'''' 

"JThe  Trustees  of  school  district  No.  1  in  the  town  of 
I  Redhook,  ex  parte, 

A  tenant  is  taxable,  whether  a  householder  or  not,  for  land  occupied  and  im- 
,  proved  by  him. 

*  The  following  question  was  submitted  to  the  Superintendent 
by  the  trus:ees  of  district  No.  1  in  the  town  of  Redhook. 

Is  a  man  that  resides  in  a  district  taxable  for  a  non-resident 
piece  of  land  leased  and  improved  by  him  in  the  same  district, 
he  at  the  same  time,  not  being  a  householder,  but  working  with 
his  father  and  others  as  it  appears? 

By  John  A.  Dix,  March  3,  1834.  If  a  man  is  in  the  ac- 
tual occupation  of  a  lot,  belonging  to  a  non-resident,  as  tenant 
of  the  latter,  he  is  taxable  for  it.  His  liability  to  taxation  does 
not  depend  upon  his  being  a  householder.  He  may  board  out, 
and  yet  if  he  hires  the  lot,  and  improves  it  as  tenant  of  the  non- 
resident owner,  he  is  taxable  for  it. 

•  1 1 

The  Trustees  of  school  district  No.  2  in  the  town  of 
Kingsbury,  ex  parte. 

The  annual  report  of  school  districts  should  be  made  out  by  the  1st  of  March. 
If  trustees  neglect,  without  good  cause,  to  make  their  annual  report  before  the 
apportionment  of  the  school  moneys,  they  are  without  remedy. - 

This  was  an  application  to  the  Superintendent  to  allow  school 
district  No.  2  in  the  town  of  Kingsbury,  out  of  the  school  mo- 
neys to  be  distributed  in  the  year  1834,  the  amount  of  its  share 
for  the  year  1833,  which  was  lost  by  the  neglect  of  the  trustees 
to  hand  in  their  annual  report  before  the  first  Tuesday  of  April, 
the  day  the  apportionment  was  made  by  the  commissioners. 

By  John  A.  Dix,  March  3,  1834.  The  91st  section  of  the 
act  relating  to  common  schools  requires  the  trustees  of  school 
districts,  on  or  before  the  1st  day  of  March  in  every  year,  to 
make  their  annual  reports  to  the  commissioners  of  common 
schools.  The  commissioners,  if  they  do  not  receive  all  the  re- 
ports, are  in  duty  bound  to  wait  until  the  first  Tuesday  of  April 


\ 


156  GASES    DECIDETD   BY   THi!    .^      ..,  jy 

before  they  apportion  the  pubUc  moneys ;  but  it  is  hot-  the  le» 
imperative  on  the  trustees  to  make  their  repotts  by  the  1st  of 
March.  The  23rd  section  provides  that  "In  making  the  appor- 
tionment of.  moneys  among  the  several  school  districts,  no  share 
shall  be  allotted  to  any  district,  part  of  a  district,  or  separate 
neighborhood,  from  which  no  sufficient  annual  report  shall  have 
been  received,  for  the  year  ending  on  the  last  day  of  December, 
immediately  preceding  the  apportionment"  You  do  not  say  on 
what  day  your  report  was  handed  to  the  commissioners  or  on 
what  day  they  made  the  apportionment.  If  they  received  it  be- 
fore the  1st  Tuesday  of  April,^it  was  in  time,  and  they  were  wrong 
in  excluding  your  district  from  the  apportionment.  But  if  they 
apportioned  the  public  money  onthe  first  Tuesday  of  April,  and 
your  report  was  not  handed  in  until  the  next  day,  you  are  witlir 
out  remedy,  unless  you  were  prevented  by  some  cause  which 
you  could  not  control.  If  your  report  was  handed  in  before 
the  1st  Tuesday  of  April,  or  if  from  any  accident  it  was  not 
handed  in  until  after  that  day,  I  will,  when  you  shall  have  ve- 
rified the  fact  by  affidavit,  direct  the  commissioners  to  supply 
the  deficiency  out  of  the  public  moneys  to  be  distributed  next 
April. 

The  Trustee*  af  school  district  No.  14  in  the  town 
of  Catlin,  ex  parte. 

Fuel  provided  for  school  districts  must  net  be  used  for  meeting  held  in  the 
school-house. 

This  was  an>  application  for  the  direction  of  the  Superinten- 
dent in  a  case  where  temperance  and  other  meetings  had,  bj' 
general  consent,  been  held  in  the  district  school-house  during  the 
winter ;  the  fuel  provided  for  the  school  having,  on  such  occa- 
sions, been  used  for  the  purpose  of  warming  the  house. 

By  John  A.-  Dix,  March  6,  1834  It-  is  extremely  impro- 
per to  allow  the  fuel  which  is  provided  and  paid  for  by  the  inha- 
bitants of  school  districts  for  common  school  purposes,  to  be  used 
for  any  otlier  pmpose  whatever.  If  the  use  of  the  school-house  is 
solicited  for  the  accommodation  of  temperance  or  other  meetings, 
and  if  it  is  by  general  consent  so  used,  the  persons  to  whom  the 
favor  i& extended  must  see  that  the  district  is  not  charged  with  the 
expense  of  warming  or  lighting  the  house.  The  custody  of  th« 
school-house  is  committed  by  the  statute  to  the  trustees,  and  it 
is  their  duty  to  see  that  the  interests  of  the  district  are  protected. 
If  they  allow  the  fuel  provided  for  the  use  of  the  school  to  be 
consumed  for  other  purposes,  they  will  be  personally  responsible 
for  it.  Whether  the  fuel  is  paid  for  by  a  tax,  or  whether  it  is 
provided  by  those  who  send  their  children  to  school,  is  of  no 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  157 

consequence.  The  principle  is  tlie  Scune  in  both  cases.  But  in 
the  latter  the  individual  grievance  is  undoubtedly  greater,  and 
the  trustees  must  see  that  it  is  redressed.  Those  who  have  used 
the  school-house  should  be  required  to  pay  for  or  replace  the 
wood  they  have  consumed,  before  they  are  allowed  to  use  it 
again. 

The  Trustees  of  school  district  No.  8  in  the  town  of 
Rensselaerville,  ex  parte. 

Executors  ace  to  be  taxed  where  they  reside  for  the  personal  property  in  iheir 
possession  or  under  their  control. 

D.  C,  an  inhabitant  of  school  district  No.  8  in  the  town  of 
Rensselaerville,  died  in  June,  1833,  leaving  a  large  personal 
pi'operty.  There  were  four  executors  under  tlie  will,  one  resid- 
ing in  the  city  of  New- York,  one  in  Albany,  and  two  in  the 
district,  having  severally  personal  property  belonging  to  the  es- 
tate in  their  hands.  The  question  submitted  was  in  what  man- 
ner they  should  be  assessed  for  a  tax  voted  to  build  a  school- 
house. 

By  John  A.  Dix,  March  6,  1834.  The  two  persons  refer- 
red to  in  your  letter  as  residing  in  your  district,  are  to  be  jointly 
assessed  as  executors  for  all  the  personal  estate  which  they  pos- 
sess or  control  in  their  representative  character.  Their  names 
must  be  entered,  on  the  tax  list  as  follows : 

p'  yI  [  Executors  of,  .&.c. 

The  tax  must  be  upon  the  whole  amount  of  property  in  the 
possession  or  under  the  control  of  the  executors  residing  in  the 
district.  If  there  were  assets  in  the  hands  of  one  of  the  non- 
resident executors,  those  assets  could  not  be  taxed  in  your  dis- 
trict. The  number  of  executors  has  nothing  to  do  with  the  rule 
of  taxation.  Only  so  much  of  the  personal  estate  as  is  in  the 
possession  or  under  the  control  of  the  resident  executors  is  to  be 
taxed.  It  is  true  that  in  contemplation  of  law  the  property  re- 
ferred to  may  be  equally  under  the  control  of  all  the  executors', 
but  for  the  purposes  of  taxation,  the  construction  Which  I  have 
given  to  it  is  indispensable  to  give  effect  to  the  provisions  of  sec- 
tion 5,  page  389,  1  R.  S.  Your  attention  is  called  to  section 
10,  page  391,  same  volume.  The  debts  referred  to  in  this  sec- 
tion are  such  as  are  specified  in  sec.  27,  page  87,  2  R.  S.  It  is 
ia  the  power  of  the  executors  to  claim  a  reduction,  under  the 
provisions  of  sec.  79,  page  482,  1  R.  S.;  and  under  sec.  16, 
page  392,  same  vol.  they  may  reduce  the  amount  by  a  specifi- 
cation of  the  value  of  the  property. 


158  ^j^,,,  .QASES   DECIDED  ^If,  TH^..  ,  ,  ;. 

The  Trustees  of  school  district  No.  — —  in  the  town 
of  Greenfield,  ex  parte. 

Two  taxes  voted  at  the  same  time  may  be  included  in  the  same  t^  list. 

In  school  district  No. in  the  town  of  Greenfield^  a  tax 

was  voted  to  purchase  fuel,  and  at  the  same  time  another  tax 
was  directed  to  be  levied  to  repair  the  school-house.  The  trus- 
tees proceeded  to  make  out  the  tax  list,  including  in  it  both 
sums.  The  question  presented  was  whether  the  proceeding  was 
legal. 

By  John  A.  Dix,  March  7,  1834.  There  is  no  objection  to 
including  in  one  tax  list  two  or  more  sums  voted  at  the  same  time 
to  be  raised  by  a  tax  on  a  school  district  for  different  obgects.  It 
is  merely  necessary  that  the  trustees,  when  the  whole  amount  is 
collected,  appropriate  the  several  sums  to  the  purposes  for  which 
they  are  authorized  to  be  raised. 

The  Trustees  of  school  district  No.  8  in  the  town  of 
Little-Falls,  ex  parte. 

If  an  individual  acquires  or  parts  with  property  after  the  last  assessment  roll  of 
the  town  is  made  out,  the  roll  must  not  be  followed  in  making  out  a  tax  list. 

In  school  district  No.  8  in  the  town  of  Little-Falls,  an  indivi- 
dual sold  the  farm,  for  which  he  was  assessed  in  the  last  assess- 
ment roll  of  the  town,  after  the  roll  was  made  out,  but  still  re- 
mained in  the  district,  and  made  other  investments.  The  ques- 
tion presented  was  whether  the  last  assessment  roll  was  to  be 
followed  in  such  a  case. 

By  John  A.  Dix,  March  7,  1834.  When  a  resident  in  a 
school  district  acquires  additional  property,  or  parts  with  property 
after  the  town  assessment  roll  is  completed,  it  is  such  a  case  as  is 
contemplated  by  the  words  "where  the  valuation  of  taxable  pro- 
perty cannot  be  ascertained  from  the  last  assessment  roll  of  the 
town,''  in  sec.  80,  page  483,  1  R.  S.  unless  it  is  a  simple  pur- 
chase or  sale  of  a  farm  or  lot,  the  value  of  which  is  separately 
fixed  and  shown  by  the  assessment  roll.  If  the  trustees  depart 
from  the  last  assessment  roll  of  the  town,  for  the  reason  above 
assigned,  they  must  give  notice  and  proceed  in  the  manner  pre- 
scribed in  that  section. 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  159 

John  Haywood  and  William  Haywood,  against  the 
Trustees  of  school  district  No.  6  in  the  town  of 
Gates. 

To  subject  the  unimproved  part  of  a  lot  belonging  to  a  non-resident  to  taxation, 
the  improved  part  must  be  occupied  by  an  agent  or  servant. 

The  facts  of  this  case  are  fully  given  in  the  Superintendent's 
order. 

By  John  A.  Dix,  March  3,  1834.  On  the  fifth  day  of  No- 
vember last,  a  tax  was  laid  by  the  inhabitants  of  school  district 
No.  6  in  the  town  of  Gates,  to  build  a  new  school-house,  and 
on  the  third  of  December  following  the  tax  list  was  made  out  by 
the  trustees.  John  Haywood  and  William  Haywood  were  taxed 
twenty-three  dollars  and  between  sixty  and  seventy  cents,  on  ac- 
count of  two  lots,  which  are  partly  cultivated  and  partly  unim- 
proved. The  Messrs.  Haywoods  are  both  non-residents  of  the 
district,  and  appeal  from  the  assessment  made  upon  them. 

It  appears  by  the  affidavit  of  John  Haywood,  that  the  first  lot 
consists  of  about  thirty-three  or  four  acres,  about  one  half  of  which 
is  improved  by  the  owners;  that  a  man  by  the  name  of  Mans- 
field occupies  a  small  log  house  and  a  small  patch  as  a  garden,, 
that  he  occupies  the  same  at  sufferance,  has  paid  no  rent,  is  not 
charged  with  any  rent,  that  he  is  in  no  respect  an  agent  for  the 
said  owners,  and  that  he  has  never  been  employed  by  the  own- 
ers in  any  way.  These  facts  are  not  denied  by  the  trustees  of 
the  district  in  their  answer  to  the  appeal  of  said  Haywoods  from 
the  assessment  made  upon  them. 

The  second  lot  contains  about  ninety  acres,  about  twenty- 
five  of  which  were  cultivated  in  October  or  November  last,  when 
said  Haywoods  purchased  it  of  one  Charles  Green,  and  took 
from  him  a  deed  of  conveyance  of  the  same.  At  the  time  of  the 
purchase  it  was  agreed  between  the  parties  verbally  that  Green 
might  remain  on  the  lot  and  occupy  it  till  April  next.  John 
Haywood  swears  that  Green  was  in  no  respect  an  agent  or  te- 
nant of  the  owners,  except  as  before  stated,  and  that  he  left  the 
lot  in  January,  since  which  time  no  other  person  has  occupied  or 
resided  on  the  lot.     These  facts  are  not  denied  by  the  trustees. 

The  Superindendent  is  of  opinion  that  there  is  in  neither  of 
these  cases  such  an  occupancy  as  to  subject  the  non-resident  own- 
ers to  taxation  on  the  whole  of  either  lot.  The  law  provides  ex- 
pressly that  no  more  than  the  cleared  and  cultivated  part  of  a 
lot  shall  be  taxed  to  a  non-resident  owner,  unless  he  improves  it 
by  an  agent  or  servant;  and  it  would  be  a  total  departure  from 
the  spirit  of  its  provisions  to  tax  the  unimproved  part  of  a  lot  on 
the  ground  of  a  temporary  occupancy  of  the  improved  part  by 
the  sufferance  of  the  owner,  without  any  benefit  on  his  part,  by 


160  CASES    DECIDED    BY    THE         '""' 

reason  of  sach  occupancy,  the  occupant  neither  paying  him  tenl 
Bor  being  in  any  way  employed  in  liis  service.  So  far  as  the 
second  lot  is  concerned  no  reason  is  perceived  why  it  may  not 
have  been  assessed  to  Green,  the  vendor,  who  remained  in  pos- 
session. 

Two  of  the  tiustees  swear  that  the  Hay  woods  were  informed 
of  the  cimoimt  of  their  tax  and  promised  to  pay  it.  It  does  not 
appear,  liowever,  that  they  were  aware  that  they  had  l^een  tax- 
ed for  the  wiiole  of  the  lots;  nor  can  such  a  notice  or  assent  de- 
prive them  of  the  right  to  appeal  in  the  manner  designated  by 
law,  and  resist  an  assessment  which  is  wholly  without  authority. 

The  trustees  object  to  the  appeal  that  thej"^  had  only  six  days' 
notice  of  its  presentation,  instead  of  ten  as  required  hy  regula- 
tion. But  they  have,  by  answering,  waived  the  objection,  and 
rendered  it  unnecessary  for  the  Superintendent  to  allow  the  ap- 
pellants to  amend  their  notice. 

It  is  therefore  ordered,  that  the  trustees  of  school  district  No.  6 
aforesaid,  amend  their  assessment  so  as  to  include  only  the  value 
of  such  parts  of  the  lots  in  question  as  are  cleared  and  cultivated: 
and  that  their  tax  list  be  made  out  and  the  tax  collected  in  con- 
formity thereta 

The  Trustees  of  school  district  No.  2  in  the  town  of 
Rhinebeck,  ex  parte. 

A  ^oop  must  be  taxed  where  the  owner  resides. 

Messrs.  Schryver  &  Bergh  owned  a  landing  and  a  sloop  in 
district  No.  2  in  the  town  of  Rhinebeck,  and  carried  on  the  bu- 
siness of  freighting.  In  the  last  assessment  roll  of  the  town  the 
property  was  assessed  to  Williamson  &.  Bergh,  Schryver  being 
a  non-resident  of  the  district,  and  Williamson  being  in  the  occu- 
pation of  the  landing  as  lessee.  Bergh,  the  other  partner,  was 
a  resident  of  the  district.  A  tax  was  soon  afterwards  voted  to 
build  a  school-house,  and  in  the  mean  time  Williamson's  inte- 
rest in  the  concern  ceased  and  he  left  the  district.  The  question 
presented  to  the  Superintendent  was  in  what  manner  the  pro- 
perty should  be  assessed. 

By  John  A.  Drx,  March  17,  1834.  Taxes  for  school  dis- 
trict purposes  are  to  be  assessed  upon  the  taxable  inhabitants  re- 
siding in  the  district  at  the  time  the  tax  list  is  made  out.  Non- 
residents can  be  taxed  only  for  real  estate  in  the  district  in  which 
such  real  estate  lies.  The  owner  of  the  dock,  whether  a  resi- 
dent or  not,  may  be  taxed  for  it,  unless  it  is  in  the  occupation  of 
a  resident  lessee  or  tenant,  in  which  case  the  latter  would  be 
taxable  for  it  if  the  owner  is  a  non-resident     But  the  owner  of 


SUPERINTENDENT    OF   COMMON    SCHOOLS.  161 

the  vessel  must  be  taxed  for  it  in  the  district  in  which  he  resides. 
If  Mr.  Bergh  resides  in  your  district  the  firm  may  be  taxed  for 
the  sloop,  and  the  tax  collected  from  the  resident  partner.  If 
you  cannot,  as  I  suppose,  follow  the  assessment  roll  of  the  town 
ia  this  case,  you  must  give  the  notice  required  by  sec.  80  of  the 
act  relating  to  common  schools. 

The  Trustees  of  school  district  No.  30  in  the  town 
of  Johnstown,  against  the  inhabitants  of  said  dis- 
trict. 

If  trustees  are  directed  by  a  vote  of  the  district  to  make  such  repairs  as  tliey  may 
think  proper  on  the  school-house,  and  the  district  afterwards  refuses  to  lay  a 
tax  for  the  purpose,  the  Superintendent  will  order  an  amount  sufficient  to 
coFer  the  reasonable  expenditures  of  the  trustees  to  be  raised. 

The  facts  connected  with  this  appeal  are  stated  in  the  order 
of  the  Superintendent. 

By  John  A.  Dix,  March  17,  1834.  On  the  20tli  of  April, 
1833,  at  an  annual  meeting  of  the  taxable  inhaWtants  of  school 
district  No.  30  in  the  town  of  Johnstown,  it  was  resolved  that 
"  the  trustees  should  make  what  repairs  they  thought  proper  and 
necessary  on  the  school-house  some  time  before  the  winter  school 
commenced."  In  thus  giving  to  the  trustees  an  unlimited  dis- 
cretion over  the  repairs  to  be  made  in  the  school-house,  the  in- 
habitants virtually  pledged  themselves  to  raise  by  a  voluntary, 
imposition  upon  their  property  such  a  sum  as  should  be  neces- 
sary to  defray  all  expenditures  made  in  good  faith  by  the  trus- 
tees in  executing  their  directions.  In  pursuance  of  the  authority 
given  to  the  trustees  they  entered  into  a  contract  with  William 
Lewis  to  make  certain  repairs  therein  specified,  and  stipulated  to 
pay  him  the  sum  of  thirty  dollars  for  his  work. 

On  the  7th  January  last,  at  a  special  meeting  of  the  inhabi- 
tants of  said  district  it  was  resolved  to  allow  the  ti-ustees  twen- 
ty-five dollars  for  the  carpenter's  work  done  to  the  school-house. 
It  was  also  resolved  to  allow  them  ten  dollars  and  twenty-two 
cents  for  a  stove  and  pipe,  and  two  dollars  and  fifty  cents  for 
building  a  chimney.  From  these  sums,  amounting  to  thirty-se- 
ven dollars  and  seventy-two  cents,  was  to  be  deducted  the  sura  of 
two  dollars  and  thirty-two  cents,  the  amount  for  which  the  brick 
and  iron  of  the  old  chimney  sold,  leaving  a  balance  of  thirty-five 
dollars  and  forty  cents  to  be  collected  by  the  trustees  for  the  pur- 
pose of  defraying  the  expenses  incurred  in  pursuance  of  the  vote 
of  the  inhabitants  on  the  20th  of  April.  From  these  proceed- 
ings the  trustees  appeal  to  the  Superintendent  of  Common 
Schools,  on  the  ground  that  the  expenditures  having  been  made 
in  good  faith,  and  they  being  personally  responsible  to  Lewis  for 

11 


162  CASES    DECIDED   BY   THE 

the  amount  contracted  to  be  paid  to  him,  the  district  ougTit  to  hare 
voted  a  tax  equal  to  the  amount  of  the  pecuniary  liability  incur- 
red by  them  in  carrying^  into  effect  the  directions  of  the  inhabi- 
tants; and  they  pray  that  an  order  may  be  granted  directing 
thirty  instead  of  twenty-five  dollars  to  be  levied  on  the  district  to 
satisfy  Lewis'  claim. 

The  Superintendent  is  of  opinion  that  the  inhabitants  are 
bound  to  exonerate  the  trustees  from  the  responsibility  which 
they  have  incurred,  and  nothing  but  an  abuse  on  the  part  of  the 
latter  of  the  authority  conferred  on  them  could  justify  a  refusal 
to  raise  the  amount  stipulated  to  be  paid  to  the  person  by  whom 
the  work  has  been  performed.  The  discretion  imparted  to  the 
trustees  was  unlimited,  and  it  is  too  late  for  the  inhabitants  when 
the  trust  has  been  executed,  to  undertake  to  limit  the  amount 
for  which  they  are  answerable,  unless  abuse  can  be  shown.  The 
trustees,  in  executing  the  contract  with  Lewis,  acted  as  their 
agent ;  and  if  Lewis  should  prosecute  and  recover  the  amount 
contracted  to  be  paid  to  him,  it  would  be  the  duty  of  the  trustees 
to  pay  the  amount  so  recovered  out  of  any  moneys  belonging  to 
the  district  in  their  hands.  To  avoid  such  an  alternative,  and 
to  release  the  trustees  from  the  responsibility  which  they  have  in- 
curred, the  Superintendent  deems  it  proper  that  the  whole  amount 
necessary  to  satisfy  the  demand  of  Lewis  should  be  levied  upon 
the  district.  The  district  has  had  notice  of  the  application  by 
service  of  a  copy  of  the  papers  on  which  it  is  founded,  on  the 
clerk,  and  no  objection  to  the  relief  prayed  for  has  been  made. 

It  is,  therefore,  ordered  that  the  trustees  of  said  school  district 
No.  30,  proceed  to  make  out  the  tax  list  so  as  to  levy  on  the 
taxable  inhabitants  the  sum  of  forty  dollars  and  forty  cents,  in- 
stead of  thirty-five  dollars  and  forty  cents,  as  directed  by  the 
vote  of  the  district  on  the  7th  of  January  last. 

(anonymous.) 

If  a  child  attends  school  half  a  day,  it  is  to  be  reckoned  as  half  a  day. 

By  John  A.  Dix,  March  18,  1S34.  If  a  child  attends  school 
part  of  a  day  only,  it  is  to  be  reckoned  as  half  of  a  day.  Noth- 
ing less  than  half  a  day  can  properly  be  recognized  by  a  teacher 
in  making  out  his  school  list. 

Joseph  Budd  and  others,  against  the  inhabitants  of 
school  district  No.  5  in  the  town  of  Murray. 

Public  money  should  be  fairiy  divided  between  the  summer  and  winter  terms. 

In  school  district  No.  5  in  the  town  of  Murray,  at  the  annual 
meeting  in  October,  1833,  it  was  voted  that  two-thirds  of  the 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  163 

public  money  to  be  received  in  the  spring  of  1834,  should  be  ap- 
plied to  the  winter  school,  and  one-third  to  the  summer  school. 
On  the  25th  November,  1833,  Daniel  Wellman  was  employed 
as  teacher,  and  continued  till  about  the  last  of  December,  when 
he  was  dismissed,  and  another  teacher  was  employed  early  in 
January,  w^ho  continued  to  teach  until  spring.  Mr.  Wellman 
was  inspected  and  received  a  certificate  of  qualification  before  he 
commenced,  but  the  certificate  was  annulled  in  about  two  weeks 
afterwards  by  the  inspectors.  Soon  after  the  second  teacher 
commenced  his  school,  a  number  of  the  inhabitants  of  the  dis- 
trict withdrew  their  children  and  sent  them  to  a  select  school. 
In  February,  1834,  the  vote  passed  at  the  annual  meeting  in 
October  preceding,  in  relation  to  the  public  money,  was  annulled, 
and  the  whole  voted  to  be  applied  to  the  winter  term.  From 
these  proceedings  an  appeal  was  brought. 

By  John  A.  Dix,  March2i,  1834.  On  examination  of  the 
appeal  of  certain  inhabitants  of  school  district  No.  5,  Murray,  Or- 
leans county,  from  the  proceedings  of  two  special  meetings,  held 
on  the  3d  and  10th  of  February  last,  it  appears  that  at  the  an- 
nual meeting  of  the  inhabitants  of  said  district,  on  the  26th  of 
October  last,  it  was  resolved  unanimously,  that  two-thirds  of  the 
public  money  for  the  year  1834,  be  applied  to  the  winter  school, 
and  tlie  remaining  third  to  the  summer  school.  It  also  appeals 
that  a  meeting  of  the  inhabitants  of  said  district  was  called  on 
the  third  of  February  last,  "  for  the  purpose  of  regulating  the 
district  school,"  and  that  said  meeting  was  adjourned  to  the  tenth 
of  the  same  month,  at  which  time  it  was  resolved  that  the  vote 
of  the  26th  October,  with  regard  to  the  application  of  the  public  0 
money,  should  be  repealed,  and  that  all  the  public  money  should 
be  applied  to  the  winter  school,  commencing  9tli  January,  1834. 

To  these  proceedings  exception  is  taken  upon  several  grounds, 
which,  for  the  purposes  of  this  decision,  it  is  unnecessary  to  spe- 
cify- 

The  principal  and  the  only  substantial  objection  to  the  pro- 
ceedings of  the  meeting  on  the  3d  February,  is,  that  the  notice 
did  not  set,  forth  in  specific  terms  the  object  in  view.  In  a  mai- 
ler so  important  as  that  of  annulling  a  previous  vote  of  the  in- 
habitants in  relation  to  the  public  money,  it  is  due  to  all  con- 
cerned that  ample  notice  should  be  given  of  the  intended  pro- 
ceeding. This  was  not  done  in  the  case  under  consideration. 
The  notice  set  forth  merely  that  the  object  of  the  meeting  was  to 
regulate  the  district  school ;  and  it  is  manifest  that  without  some 
other  intimation,  an  intention  of  making  a  new  appropriation  of 
the  public  money  would  not  readily  have  been  inferred  from  the 
terms  of  the  notice.     The  same  objection  applies  to  the  adjourn- 


164  CASES   DECIDED   BY   THE 

ed  meetinjy  on  the  10th  February,  of  which  no  notice  was  given, 
as  the  adjournment  was  for  less  time  than  one  month. 

So  far  as  the  inhabitants  resolved  to  apply  none  of  the  public 
money  to  be  received  this  year  to  the  payment  of  teachers'  wa- 
ges for  services  rendered  previous  to  the  first  of  January  last,  they 
acted  in  conformity  to  the  requirements  of  the  law.  The  money 
apportioned  in  1834,  must  be  applied  during  the  year,  and  Mr. 
Wellman,  who  taught  school  in  November  and  December,  1833. 
cannot,  under  the  provisions  of  the  law,  receive  any  portion  of  it. 

It  is  undoubtedly  most  proper  that  a  fair  division  of  the  public 
money  should  be  made  between  the  winter  and  summer  terms, 
as  the  children  of  indigent  persons  are  often,  for  the  want  of  com- 
fortable clothing,  unable  to  attend  the  winter  school.  But  in  thi? 
case  a  large  number  of  children  residing  in  the  district  have  been 
withdrawn  from  the  school,  the  maintenance  of  which  falls  upon 
comparatively  few  persons,  and  the  Superintendent  deems  it  no 
more  than  just  to  direct,  as  a  fair  support  has  not  been  given  to 
the  school,  that  two-thirds  of  the  public  money  received  in  1834, 
shall  be  applied  to  the  winter  term  commencing  on  the  9th 
January  last,  and  to  submit  to  the  inhabitants  of  the  district 
whether  the  remaining  third  shall  be  applied  to  the  winter  or 
summer  term. 

.  It  is  accordingly  ordered,  that  the  proceedings  of  the  meeting? 
of  the  3d  and  10th  February,  be  set  aside ;  that  two-thirds  of  the 
public  money,  which  the  trustees  of  said  district  No.  5  may  re- 
ceive during  the  present  year,  shall  be  applied  to  the  term  com- 
mencing on  the  9th  January  last ;  and  that  the  trustees  proceed 
forthwith  to  call  a  special  meeting  of  the  taxable  inhabitants  for 
the  purpose  of  deciding  whether  the  remaining  third  of  the  said 
money  shall  be  applied  to  the  term  last  mentioned,  or  to  the 
school  which  may  be  kept  next  summer. 

The  inhabitants  of  school  district  No.  14  in  the  towns 
of  Marcellus  and  Skaneateles,  ex  parte. 

Suits  for  penalties  against  district  officers  for  neglecting  to  perform  the  duties  of 
their  office,  must  be  brought  by  commissioners  of  common  schools. 

Tlie  penalty  provided  in  case  district  officers  neglect  to  perform  the  duties  of 
their  office,  is  intended  for  cases  of  total  neglect. 

If  a  clerk  neglects  to  keep  a  book  of  minutes,  he  is  not  responsible  unless  a 
book  is  provided  for  him. 

This  was  a  case  in  which  the  clerk  of  a  scho(^  district  had 
neglected  to  keep  any  record  of  the  proceedings  of  the  district. 
The  questions  presented  to  the  Superintendent  were,  whether  he 
could  be  prosecuted  for  neglect  to  perform  the  duties  of  his  office 
— if  so,  by  whom,  and  if  there  was  any  limitation  of  time  in 
bringing  such  suit. 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  165 

By  John  A.  Dix,  March  28,  1834.  Suits  against  school 
district  officers  for  penalties  for  neglecting  to  perforin  the  duties^ 
of  their  office  must  be  brought  by  the  commissioners  of  com- 
mon schools  of  the  town;  but  there  is  no  special  limitation  of 
such  actions  in  point  of  time.  They  may  perhaps  be  considered 
as  coming  within  the  general  provision  of  the  Revised  Statutes 
contained  in  the  31st  section,  2d  vol.  page  298,  by  a  construc- 
tion which  should  regard  the  town  as  the  party  aggrieved,  and 
the  commissioners  as  the  representatives  of  the  town  in  bringing 
the  suit.  A  suit  could,  in  that  case,  not  be  brought  after  three 
years.  / 

Before  the  clerk  of  the  district  is  prosecuted,  it  might  be  welt 
to  refer  to  the  case  of  Spaflford  and  Hood  in  the  sixth  volume  of 
Cowen's  Reports,  page  478,  in  which  the  court  held  that  the 
penalty  provided  by  sec.  22  of  the  common  school  act,  passed  in 
1819,*  could  not  be  exacted  for  an  omission  of  duty  in  an  indi- 
vidual instance,  but  was  intended  for  cases  where  there  had 
been  a  total  neglect  of  the  duties  of  the  office.  If  you  will  refer 
to  section  74  of  the  Revised  Statutes,  vol.  1,  page  480,  you  will 
perceive  that  the  district  is  to  provide  a  book  for  the  clerk  to  re- 
cord its  proceedings,  &c.  Without  reference  to  the  principle  of 
the  decision  above  referred  to,  it  would  be  necessary,  in  order  to 
make  him  answerable,  to  show  that  such  a  book  had  been  pro- 
vided. 

The  Trustees  of  school  district  No.  2  in  the  town  of 

Clarkstow^n,  ex  parte.  ^ 

If  trustees  contract  to  pay  a  teacher  a  specific  sum  per  month  or  per  scholar,  the 
mode  of  providing  for  the  payment  of  "his  wages  must  be  the  same  in  either 
case. 

This  was  a  case  in  which  the  trustees  contracted  to  pay  a 
teacher  a  specific  sum  for  each  scholar  attending  during  the 
term,  and  the  question  presented  to  the  Superintendent  was  in 
what  manner  his  wages  should  be  paid. 

*  Sec.  72,  page  480,  vol.  1,  R.  S.  In  the  case  referred  to,  Judge  Sutherland, 
who  pronounced  the  decision  of  the  court,  said,  "  Where  it  is  the  intention  of 
the  legislature  to  impose  a  penalty  on  an  officer  for  the  omission  of  any  particu- 
lar duty,  they  use  language  which  is  clear  and  explicit.  Thus  in  relation  to  the 
overseers  of  highways  (2  R.  L  274,  §14)  it  is  provided,  « That  every  overseer 
of  highways  who  shall  neglect  or  refuse  to  warn  the  people  assessed  to  work  on 
the  highways,  &c. ,  or  to  collect  the  moneys  that  may  arise  from  fines  or  commuta- 
tions, or  to  perform  any  of  the  duties  and  Services  required  by  the  act,  or  which 
may  be  enjoined  on  him  by  the  commissioners,  &c.,  shall  forfeit /or  every  such 
neglect  or  refusal,  the  sum  of  $10,'  &c.  The  difference  in  the  phraseology  of 
these  acts  is  very  striking,  and  in  my  judgment  affords  strong  confirmation  of  the 
correctness  of  the  construction  we  have  given  to  the  section  of  the  school  act 
under  consideration." 


166  CASES    DECIDED    BY    THE 

By  John  A.  Dix,  April  21,  1834.  The  trustees  of  a  school 
district  may  make  a  contract  with  a  teacher  to  pay  him  by  the 
month,  the  week,  or  at  so  much  a  scholar;  but  in  raising  the 
sum  necessary  for  his  compensation,  they  must  proceed  as  the 
law  directs.  Subdivisions  8,  9,  10,  11,  12,  13  and  14,  of  section 
75,  1  R.  S.  pages  481  and  482,  point  out  their  duty,  and  they 
cannot  by  any  contract  with  a  teacher,  impose  upon  the  inha- 
bitants of  the  district  an  obligation  to  pay  him  in  any  other  man- 
ner. To  agree  to  pay  so  much  per  scholar  can  therefore  have 
no  other  legal  effect  than  to  furnish  a  rule  for  ascertaining  the 
amount  of  the  teacher's  wages.  The  inhabitants  must  still  pay 
according  to  the  rule  established  by  subdivision  No.  12  of  the 
section  above  referred  to. 

(anonymous.) 

If  two  farms  are  set  off  from  one  school  district  to  another,  and  contain  within 
them  a  third  not  included  in  the  order  of  the  commissioners,  the  latter  must 
nevertheless  go  with  them. 

By  John  A.  Dix,  April  4,  1834.  A  question  has  been  sub- 
mitted to  me  with  regard  to  two  farms  set  off  from  one  district 
to  another.  As  I  understand  the  case,  these  two  farms  contain- 
ed within  them  another  farm  which  did  not  touch  on  the  exter- 
nal boundaries  of  either.  The  question  was,  whether  this  farm, 
thus  enclosed  by  the  others,  w^as  set  off  with  them,  or  whether 
it  continued  Ijo  be  a  part  of  the  district  from  which  they  were  ta- 
ken. The  answer  is,  that  it  must  be  considered  as  set  off  with 
them,  although  it  be  not  expressly  named.  By  setting  off  the 
farms  referred  to,  the  districts  acquire  new  boundaries,  and  all 
the  farms  lying  on  either  side,  of  the  new  line  of  division  must 
belong  to  the  district  within  the  hmits  of  which  it  is  includ- 
ed. School  districts  must  consist  of  contiguous  territory,  and 
no  arrangement  which  violates  this  rule  can  be  sanctioned. 
The  case  submitted  to  me  probably  originated  in  error;  and  it 
would  be  well  for  the  commissioners  of  common  schools  to  amend 
their  record,  and  specify  the  farm  which  has  raised  the  question, 
as  one  of  those  set  off,  although  it  must  go  along  with  the  oth- 
ers by  force  of  the  rule  above  stated. 

The  Trustees  of  school  district  No.  11  in  the  town 
of  Harpersfield,  ex  parte. 

A  tax  cannot  be  voted  to  pay  costs  of  suit  recovered  against  the  trustees  of  a 
school  district. 

In  this  case  a  suit  was  commenced  by  the  trustees  against  an 
individual  on  a  contract  for  building  a  school-house.  Before 
bringing  the  suit,  the  trustees  consulted  the  inhabitants,  and 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  167 

were  directed  to  proceed.  The  suit  failed,  and  the  question  pre- 
sented was  in  what  manner  the  costs  could  be  paid. 

By  John  A.  Dix,  April  5,  1836.  The  inhabitants  of  a 
school  district  cannot  vote  a  tax  to  pay  costs  of  suit  recovered 
against  the  trustees.  By  referring  to  the  2d  volume  of  the  Re- 
vised Statutes,  page  476,  section  108,  you  will  perceive  that  trus- 
tees may  charge  in  their  official  accounts,  the  amount  of  debt, 
damages,  or  costs  recovered  against  and  collected  of  them.  They 
would  not  be  authorized  to  pay  the  amount  so  recovered  out  of 
any  moneys  received  by  them  for  the  payment  of  teachers'  wa- 
ges ;  but  they  would  be  justifiable  in  paying  it  out  of  moneys  in 
their  hands  levied  upon  the  taxable  property  of  the  district  for 
any  of  the  objects  specified  in  sub.  5  of  sec.  61, 1 R.  S.  page  478. 
If  no  such  moneys  were  in  their  hands,  they  would  be  com- 
pelled to  resort  to  the  legislature  for  relief. 

In  this  case  the  district  is  bound  by  every  equitable  considera- 
tion to  save  the  trustees  harmless,  and  the  inhabitants  ought,  if 
there  is  no  other  method  of  doing  so,  to  raise  by  subscription  the 
amount  necessary  to  pay  the  costs  for  which  they  are  liable. 

The  Trustees  of  school  district  No.  10  in  the  town 
of  Gainesville,  against  the  Commissioners  of  Com- 
mon Schools  of  said  town. 

In  appraising  a  school-house,  when  a  new  district  is  formed,  the  commissioners 
must  deduct  debts  due  from  the  district  retaining  the  school-house. 

This  was  an  application  for  the  decision  of  the  Superintendent 
on  a  statement  of  facts  agreed  to  and  submitted  by  the  parties. 
In  forming  a  new  district,  by  a  division  of  school  district  No. 
10  in  the  town  of  Gainesville,  the  commissioners  appraised  the 
school-house  remaining  in  the  latter  at  its  full  value,  without 
making  any  allowance  for  a  debt  of  $25.15  due  for  the  con- 
struction of  the  house,  the  person  who  erected  it  not  having  been 
fully  paid.  The  debt  thus  due  arose  from  the  inability  of  the 
collector  to  collect  a  portion  of  the  tax  equal  to  that  amount  from 
inhabitants  of  the  district,  who  were  included  in  the  assessment 
roll  of  the  town,  but  who  had  no  property  on  which  he  could 
levy;  and  in  the  mean  tirhe  they  had  removed  from  the  district, 
with  the  exception  of  one  of  the  individuals  who  was  set  off  to 
the  new  district. 

By  John  A-  Dix,  April  28,  1834.  The  commissioners  do 
not,  upon  the  statement  of  facts  presented,  appear  to  have  done 
what  the  law  requires.  They  should  deduct  all  debts  due  frora 
district  No,  10.  See  sec.  68,  1  R.  S.  page  479.  The  taxes  re- 
ferred to  as  unpaid  by  the  persons  on  whom  they  were  assessed 
are  a  charge  on  the  district,  as  they  cannot  be  collected  of  the  per- 


168  CASES    DECIDED   BY   THE  -i 

sons  from  whom  they  are  due,  and  the  whole  amount  should 
be  deducted  from  the  value  of  the  school-house. 

The  commissioners  must  amend  their  appraisement  by  de- 
ducting from  the  value  of  the  school-house  $26 .  15. 

(anonymous.) 

The  wages  of  two  teachers  employed  for  difierent  terms  cannot  be  included  in 
the  same  rate  bill. 

By  John  A.  Dix,  May  7,  1834.  If  two  teachers  are  em- 
ployed in  succession  for  different  terms,  at  different  rates  of  com- 
pensation, they  should  receive  for  their  wages  an  equal  amount 
of  the  public  moneys  on  hand,  and  the  residue  of  the  wages  of 
each  should  be  paid  by  a  rate  bill  made  out  against  those  who 
patronized  their  schools,  respectively.  It  is  wholly  inadmissible 
to  provide  by  the  same  rate  bill  for  the  compensation  of  two 
teachers  for  different  terms  of  instruction. 

The  Trustees  of  school  district  No.  7  in  the  town  of 
Marcy,  ex  parte. 

A  fax  to  build  a  school-house  may  be  raised,  but  should  not  be  expended,  before 
the  district  has  acquired  such  an  interest  in  the  site  as  to  be  able  to  control 
the  house. 

(A  tax  cannot  be  raised  to  build  a  school  house  on  a  site  selected  without  le- 
gal authority.     See  note.) 

In  this  case  the  agent  of  a  glass  factory  gave  the  inhabitants 
of  school  district  No.  7  in  the  town  of  Marcy,  permission  to  build 
a  school-house  on  the  corner  of  the  land  belonging  to  the  com- 
pany, and  engaged  to  use  his  exertions  to  procure  a  conveyance 
of  the  site  free  -of  expense  to  the  district.  The  question  submit- 
ted was  whether  the  district  should  build  the  school-house  under 
these  circumstances. 

By  John  A.  Dix,  May  7,  1834.  I  have  received  a  state- 
ment of  facts  respecting  a  tax  voted  by  the  inhabitants  of  school 
district  No.  7  in  the  town  of  Marcy,  for  the  purpose  of  building  a 
school-house.  The  right  to  collect  the  tax  is  perfect,  without  re- 
gard to  the  condition  of  the  lot  on  which  it  is  proposed  to  build 
the  school-house;  and  no  person  can  refuse  to  pay  his  tax  becatise 
the  district  has  not  procured  a  conveyance  of  the  lot.*    At  the 

•  In  the  case  of  Baker  vs.  Freeman,  9  Wendell,  36,  the  supreme  court  decided 
that  a  tax  was  unauthorized  and  void,  where  it  had  been  voted  lor  the  purpose 
of  building  a  school-house  on  a  site  which  had  been  selected  without  any  legal 
authority.  In  this  case  the  district  had  a  school-house,  and  the  site  was  changed 
without  taking  the  steps  required  by  law. 

So  in  the  case  of  the  trustees  of  school  district  No. in  the  townof  Winfield, 

page  60,  the  Superintendent  would  not  allow  a  tax  to  be  collected  to  repair  a 


^^ 


SUPERINTENDENT    OF    COMMON   SCHOOLS.  169 

same  time  a  school-house  must  not  be  built  without  some  legal 
right  to  control  it.  There  ought  to  be  at  least  a  written  agree- 
ment on  the  part  of  the  agent  of  the  glass  factory  company  that 
the  district  may  remove  the  school-house,  unless  a  title  to  the 
land  shall  be  procured.  If  such  an  agreement  cannot  be  obtain- 
ed the  district  should  build  the  house  elsewhere,  although  |^  ta^^ 
may  be  collected  notwithstanding.  _  %^ 

■   •Hi 

(anonymous.) 

A  Tote  to  divide  public  money  into  portions  may  be  taken  at  any  time  before  the 
money  is  expended. 

By  John  A.  Dix,  May  7,  1834.  The  inhabitants  of  a  school 
district,  may  at  any  time  before  the  public  money  is  expended,  vote 
that  it  be  divided  into  portions,  provided  that  by  such  vote  it  is' 
all  to  be  expended  during  the  year  in  which  the  money  was  re- 
ceived. The  vote  may  be  taken  at  any  meeting,  annual  or 
special. 

(anonymous.) 

A  district  cannot  make  a  second  division  of  the  public  money  after  a  rate  bill 
has  been  made  out  and  delivered  to  the  collector. 

By  John  A.  Dix,  May  7,  1834.  Where  the  public  money 
has  been  appropriated  by  a  vote  of  the  inhabitants  of  a  school  dis- 
trict to  the  payment  of  a  teacher's  wages  for  particular  terms,  and 
the  trustees  have  gone  on  in  pursuance  of  such  vote  to  make  out 
a  rate  bill  for  the  amouht  necessary  to  make  up  the  deficiency  of 
the  public  money  to  pay  said  teacher's  wages  for  one  term,  if  said 
trustees  have  delivered  the  rate  bill  and  warrant  to  the  collector, 
and  the  latter  has  actually  commenced  collecting  upon  such  rate 
bill,  the  inhabitants  have  no  right  to  make  a  different  division 
of  the  pubhc  money  by  a  subsequent  vote,  and  thus  render  it  ne- 
cessary to  make  out  a  new  rate  bill. 

(anonymous.)  . 
Parents  cannot  be  compelled  to  send  their  children  to  school. 

By  John  A.  Dix,  May  19,  1834.  Trustees  cannot  compel 
any  inhabitant  of  the  district  to  send  his  children  to  the  district 
school.     They  are  pf  course  entitled  to  receive  and  apply,  for  the 

school-house  to  which  the  distiict  had  no  title,  and  which  the  owner  had  focNd- 
den  the  trustees  to  repair. 

In  these  two  cases  the  money  to  be  raised  could  not  be  properly  expended. 
In  the  case  above  reported  there  was  no  violation  of  law  in  voting  the  tax,  and 
the  proposed  site  was  to  be  occupied  with  the  consent  of  the  person  having 
charge  of  the  land  for  1i^e  time  being. 


•♦ 


170  CASES    DECIDED    BY    THE 

support  of  tifle  district  school,  all  the  public  money  apportioned  to 
the  district ;  but  if  any  person  chooses  to  send  his  children  to  a 
private  school  he  has  an  undoubted  right  to  do  so. 

The  Trustees  of  school  district  No.  3  in  the  town  of 
Gainesville,  ex  parte. 

Fuel,  when  furnished  in  kind,  must  be  in  proportion  to  the  number  of  children 
sent  to  school  and  the  number  of  days'  attendance. 

This  was  an  application  for  the  opinion  of  the  Superintendent 
in  a  case  where  the  trustees  had  made  out,  at  the  beginning  of 
the  term,  an.  estimate  of  the  quantity  of  wood  to  be  furnished  by 
each  inhabitant,  according  to  the  number  of  children  proposed  to 
be  sent  to  school,  and  had  afterwards  altered  the  amount,  in  seve- 
ral cases,  to  meet  changes  in  the  school. 

By  John  A.  Dix,  Mai/  20,  1834.  There  is  some  difficulty 
in  furnishing  fuel  in  kind  for  school  districts,  and  it  can  only  be 
obviated  by  a  willingness  on  the  part  of  all  concerned  to  do 
justice  to  each  other.  The  statute  provides  that  the  proportion 
to  be  furnished  by  every  person  sending  to  school  shall  be  "  ac- 
cording to  the  number  of  children  sent  by  each."  But  the  lan- 
guage of  this  provision  is  clearly  to  receive  such  a  reasonable 
construction  as  will  make  each  inhabitant  contribute  in  propor- 
tion to  the  benefits  he  has  received. 

Suppose  a  school  is  opened  for  a  term  of  three  months,  and 
the  trustees,  in  making  out  the  apportionment  of  fuel  according 
to  the  form  provided  for  such  cases,  (see  Appendix,)  set  down  A. 

B.  and  C.  D.  for  three  children  each.  At  the  end  of  one  week 
two  of  the  children  of  A.  B.  iare  taken  sick  and  are  unable  to  at- 
tend during  the  residue  of  the  term,  while  the  three  children  of 

C.  D.  continue  during  the  whole  period  of  three  months.  Ought 
the  apportionment  made  at  the  commencement  of  the  term  to  be 
enforced,  when  a  change  of  circumstances  has  rendered  it  whol- 
ly unequal  and  inequitable?  Clearly  not.  It  must  be  corrected 
according  to  the  directions  of  the  Superintendent  of  Common 
Schools,  under  the  form  above  referred  to  ;*  and  the  principle  of  the 
apportionment  must  be,  as  nearly  as  possible,  in  a  compound  ratio 
of  the  number  of  children  sent  to  school,  and  the  time  during  which 
they  are  sent.  This  is  the  only,  construction  of  the  law  which 
can  make  it  equal  and  just  in  practice.  As  I  have  already  ob- 
served there  is  some  difficulty  in  making  the  relative  contribu- 
tions of  the  patrons  of  the  school  exact  in  all  cases ;  but  the  ap- 
proximation to  exactness  must  be  as  near  as  possible.  If  this 
difficulty  cannot  be  adjusted  amicably,  and  upon  fair  principles, 

•  See  decision  by  A.  C.  Flagg,  April  28,  1831,  page  39. 


SUPERINTENDENT    OF    COMJ^ON    SCHOOLS.  171 

^_      it  is  better  hereafter  to  vote  a  tax,  and  let  the  property  of  the  dis- 
^     trict  provide  the  fuel. 

The  Trustees  of  joint  school  districtNo.il  in  the 
'    town  of  Deerfield  and  No.  14  in  the  town  of  Marcy, 
ex  parte. 

^  Ji^  Commissioners  of  common  schools  have  no  authority  to  designate  a  site  (or  a 
V  ^^  school-house,  or  to  give  a  conditional  consent  to  a  change  of  the  site.  ■\ 

In  this  case  the  commissioners  of  common  schools  of  the  towns 
of  Deerfield  and  Marcy  gave  their  consent  to  change  the  site  of 
the  school-house  in  a  joint  district  in  said  towns.  The  inhabi- 
tants of  the  district  immediately  assembled,  pursuant  to  a  notice 
regularly  given,  and  fixed  a  new  site.  Soon  afterwards,  on  the 
application  of  some  dissatisfied  persons,  the  commissioners  re- 
voked their  former  proceedings  and  gave  a  written  consent  to  a 
change  of  site,  provided  it  should  be  fixed  by  the  inhabitants  of 
the  district  at  a  particular  place.  An  application  was  made  to 
the  Superintendent  under  these  circumstances  for  his  opinion  as 
to  the  regularity  of  the  proceedings  of  the  commissioners. 

By  John  A.  Dix,  June  12,  1834.  Commissioners  of  com- 
mon schools  have  no  right  to  designate  the  site  for  a  school- 
house,*  nor  do  I  think  it  proper  that  they  should  give  a  condi- 
tional consent  to  a  change  of  site.  If  such  a  change  is  required 
by  the  convenience  of  a  district,  they  may  give  their  consent ;  but 
they  have  no  right  to  say  where  the  new  site  shall  be  fixed. 
This  is  a  matter  which  has  been  left  by  the  law  to  the  decision 
of  the  inhabitants. 

If  the  facts  stated  in  your  letters  were  satisfactorily  shown,  I 
should  most  certainly  hold  the  revocation  of  their  consent  as 
first  given  by  the  commissioners  to  be  wholly  nugatory.  Their 
consent  having  once  been  given,  and  the  inhabitants  having 
fixed  the  site,  the  matter  was  ended.  If  any  person  considered 
himself  aggrieved,  the  proper  course  was  an  appeal  to  the  Super- 
intendent of  Common  Schools. 

i  The  Commissioners  of  Common  Schools  of  the  town 

of  Pitcher,  ex  parte. 

When  a  tov?n  is  divided  and  a  new  one  formed,  or  when  two  existing  towns 
are  altered,  the  public  moneys  are  apportioned  between  them  according  to  tha 
number  of  children  between  5  and  16  years  of  age. 

In  this  case  several  lots  having  been  transferred  by  an  act  of 
the  legislature  from  the  town  of  Lincklaen  to  the  town  of  Pitcher, 

•  See  the  case  of  the  commissionejs  of  common  schools  of  the  town  of  Burns, 
page  13. 


:*b 


172  CA6B*  liECIDED   BY   THE 

the  commissioners  of  the  latter  applied  to  the  Superintendent  to 
be  instructed  as  to  the  manner  in  which  the  public  moneys 
should  be  re-apportioned  between  the  two  towns. 

By  John  A.  Dix,  June  12,  1834.  Whenever  a  town  is  di- 
vided there  must  be  a  new  apportionment  of  school  moneys,  so 
that  the  parts  separated  from  each  other  may  have,  in  this  re- 
spect, the  same  exact  justice  to  which  they  were  entitled  when 
they  were  together.  The  apportionment  would  naturally  be 
made  upon  the  basis  of  the  population  of  the  respective  parts; 
but  as  it  is  not  easy,  when  a  town  is  altered  or  a  new  one  form- 
ed, to  ascertain  the  number  of  inhabitants  in  the  divided  territo- 
ry, the  apportionment  has  usually  been  made  with  reference  to 
the  number  of  children  between  five  and  sixteen  years  of  age. 
As  they  are  annually  enumerated,  a  ready  mode  is  presented  of 
aaftertaining,  (by  a  standard  too  which  is  as  just  as  the  other,) 
what  each  part  of  the  divided  territory  is  entitled  to. 

The  process  is  so  simple  that  it  has  usually  been  attended  to 
by  the  commissioners  of  the  two  towns  without  any  reference  of 
the  subject  to  the  Superintendent  of  Common  Schools,  except  in 
case  of  a  disagreement,  which  very  rarely  happens.  The  same 
course  can  be  pursued  by  you,  with  regard  to  the  lots  transfer- 
red from  Lincklaen.  You  can  agree  on  the  apportionment  and 
file  a  copy  of  the  agreement  with  the  county  treasurer  and 
another  with  the  clerk  of  the  board  of  supervisors.  Nothing 
further  will  be  required  until  the  next  census  is  taken. 

The  Trustees  of  joint  school  district  No.  6  in  the 
towns  of  Tyrone  and  Barrington,  against  the  com- 
missioners of  common  schools  of  the  latter  town. 

Joint  districts  can  only  be  altered  by  the  concurrence  of  the  commissioners  of  all 
the  towns  of  which  they  constitute  a  part. 

The  orders  of  the  commissioners  altering  joint  districts  must  be  put  on  record  in 
all  the  towns  of  which  the  districts  are  a  part.  - 

The  regulation  of  the  Superintendent  requiring  an  appeal  to  be  made  within  thir- 
ty days  after  the  proceeding  complained  of,  is  not  to  be  enforced  against  an 
aggrieved  party  having  no  knowledge  of  such  proceeding. 

The  facts  of  this  case  are  recited  in  the  Superintendent's  or- 
der. 

By  John  A.  Dix,  June  12,  1834.  This  is  an  appeal  by  the 
trustees  of  joint  school  district  No.  6  in  the  towns  of  Tyrone  and 
Barrington,  from  the  proceedings  of  the  commissioners  of  com- 
mon schools  of  the  town  of  Barrington  in  refusing  to  pay  over 
to  said  trustees  the  public  morjey  due  from  the  town  last  men- 
tioned for  the  present  year. 

From  the  representations  of  the  parties  it  appeare  that  distria 
No.  6,  aforesaid,  was  formed  in  the  year  1819,  as  a  school  district 


SUPERINTENDENT    OF    COMMON  SCHOOLS.  173 

in  the  town  of  Wayne.  This  town  was  a  few  years  afterwards 
divided  into  the  towns  of  Wayne,  Tyrone  and  Barrington.  and  dis- 
trict No.  6  became  a  joint  district  of  the  two  latter  towns.  On  the 
5th  day  of  January,  1833,  the  commissioners  of  common  schools 
of  the  town  of  Barrington  met  at  the  Baptist  meeting  house  in 
said  town,  and  formed  a  new  school  district  by  the  designation 
of  district  No.  8.  This  district  was  formed  wholly  of  territory 
belonging  to  the  town  of  Barrington,  but  included  several  inha- 
bitants of  joint  district  No.  6.  On  the  first  Tuesday  of  April 
last,  the  report  of  the  last  mentioned  district  for  the  year  1833 
was  presented  to  the  commissioners  of  Barrington,  who  refused 
to  apportion  any  public  money  to  said  district,  on  the  ground 
that  the  report  was  false,  as  it  included  four  children  residing 
with  Jonathan  Silsbee,  and  one  residing  with  Dennis  Sunder- 
lin,  both  of  whom  had  been  included  in  district  N®.  8  at  the 
time  of  its  formation.  The  trustees  of  joint  district  No.  6  allege, 
that  Sunderlin  belongs  to  said  district,  but  it  does  not  appear, 
except  by  inference,  from  the  answer  of  the  commissioners,  that 
Silsbee  was  also  included  in  said  district  previous  to  the  forma- 
tion of  district  No.  8. 

The  alteration  made  in  joint  district  No.  6  was  clearly  unau- 
thorized by  law,  and  is  therefore  void.  It  has  been  repeatedly 
decided  by  the  Superintendent  of  Common  Schools,  that  the  alte- 
ration of  a  town  line  does  not  affect  the  organization  of  a  school 
district.  Decision  87,*  to  which  the  commissioners  have  refer- 
red in  their  answer  to  the  appeal,  expressly  declares,  that  "where 
the  line  of  a  new  town  runs  through  a  school  district,  the  com- 
missioners of  the  old  and  new  town  should  regard  a  district  thus 
intersected  by  a  town  line,  as  a  joint  district."  In  the  original 
formation  of  school  districts,  if  the  lines  of  towns  and  counties 
can  be  made  also  the  lines  of  school  districts  with  convenience 
to  the,  parties  interested,  it  is  desirable  to  adopt  them,  as  the  af- 
fairs of  single  districts  are  more  easily  condijcted  than  those  of 
joint  districts.  But  a  district  being  once  formed,  it  cannot  be  al- 
tered without  some  action  on  the  part  of  the  authority  appointed 
by  law  to  make  such  alterations.  Where  a  new  town  is  formed 
and  the  line  intersects  a  school  district,  it  becomes,  as  a  matter 
of  course,  a  joint  district,  for  it  is  only  as  such  that  it  can  re- 
ceive from  both  towns  the  public  money,  to  which  it  is  entitled. 
The  moment  a  single  district  becomes  joint,  the  action  of  the 
commissioners  of  all  the  towns  of  which  it  is  a  part,  is  indis- 
})ensable  to  give  validity  to  any  alteration  in  its  boundaries. 
The  commissioners  of  Barrington  had,  consequently,  no  right  to 

*  See  the  case  of  the  commissionera  of  common  schools  of  the  town  of  Star- 
key,  page  1. 


■^t, 


I 


174  CASES    DECIDED    BY    THE 

set  off  an  inhabitant  from  joint  district  No.  6,  without  the  con- 
currence of  the  commissioners  of  Tyrone. 

The  commissioners  of  Barrington  object  to  the  regularity  of 
the  appeal,  that  it  contains  no  map  exhibiting  the  sites  of  the 
school-houses  of  the  districts  concerned.  Such  a  map  is  not  in 
this  case  necessary.  The  question  presented  is  not  whether  an 
alteration  in  joint  district  No.  6  ought  or  ought  not  to  be  made 
as  a  matter  of  convenience  to  the  parties,  but  whether  the  alte- 
ration made  is  valid,  and  if  so,  whether  the  ground  assumed  by 
the  commissioners  in  refusing  to  apportion  to  that  district  its  pro- 
per share  of  the  public  money  can  be  maintained  upon  legal 
principles. 

Section  21st  of  the  1st  vol.  of  the  Revised  Statutes,  page  471, 
and  decision  No.  77*  of  the  Superintendent,  intend  clearly  that 
no  alteration  shall  be  made  in  a  joint  district,  unless  such  alte- 
ration has  the  concurrence  of  a  majority  of  the  commissioners  of 
each  of  the  towns  interested.  Whether  the  district  remains  a 
joint  district  after  such  alteration,  or  whether  the  effect  of  such 
alteration  is  to  make  it  a  single  district,  is  of  no  consequence. 
The  rule  is  the  same  in  both  cases.  This  construction  is  in  en- 
tire accordance  with  the  whole  tenor  of  the  Superintendent's  de- 
cisions ;  and  if  it  is  not  clear  from  the  language  of  section  21 
that  such  is  the  true  meaning  of  that  sectiorj,  all  doubt  on  this 
point  will  be  dispelled  by  a  reference  to  section  65,  1st  vol.  Re- 
vised Statutes,  page  479,  which  provides  for  the  case  of  a  refu- 
sal on  the  part  of  the  commissioners  of  one  town  to  act  with  the 
commissioners  of  another  for  the  purpose  of  altering  a  joint  dis- 
trict. The  true  course  to  have  been  pursued  in  this  case  was, 
for  the  commissioners  of  Barrington,  on  the  application  of  some 
of  the  persons  interested' in  the  new  school  district  to  have  sum- 
moned the  commissioners  of  Tyrone,  to  attend  a  joint  meeting 
of  the  commissioners  of  both  towns  for  the  purpose  of  setting 
off  to  the  new  district  the  persons  residing  in  Barrington,  and 
belonging  to  joint  district  No.  6.  In  this  alteration  the  com- 
missioners of  both  towns  must  have  concurred,  and  the  pro- 
ceedings should  have  been  made  a  matter  of  record  in  both 
,  towns.  Beyond  this  the  commissioners  of  Tyrone  had  no  au- 
thority to  act.  The  formation  of  a  new  school  district  lying 
.  wholly  within  the  town  of  Barrington  and  composed  of  persons 
not  belonging  to  a  joint  district  was  a  matter  for  the  determi- 
nation of  the  commissioners  of  that  town  only ;  but  no  person 
belonging  to  a  district  lying  partly  in  Tyrone  could  be  set  to 
such  new  district  without  the  concurrence  of  the  commissioners 

•  See  the  case  of  the  inhabitants  of  joint  school  district  No.  15  in  Warwick 
and  Goshen ,  page  23. 


fwl 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  175 


of  me  latter  towji.  It  follows,  of  course,  that  all  orders  making 
alterations  in  joint  districts  paust  be  put  on  record  in  all  the  towns 
of  which  such  districts  constitute  a  part,  even  though  such  alte- 
rations do  not  directly  affect  persons  residing  in  all  the  towns  in 
which  they  are  recorded.  Tims,  although  no  inhabitant  of  Ty- 
rone was  taken  from  district  No  6  to  form  district  No.  8,  the  or- 
der signed  by  the  commissioners  of  both  towns  should  have  been 
recorded  in  Tyrone,  because  No.  6  lies  partly  in  that  town.  It 
is  clear  that  unless  such  records  are  made,  the  commissioners 
of  one  town  can  never  know  the  boundaries  of  a  joint  district 
without  resorting  to  records  in  another  town,  over  which  they 
have  no  control. 

The  objection  made  by  the  commissioners,  that  their  proceed- 
ings in  altering  joint  district  No.  6  were  not  appealed  from  within 
thirty  days,  the  time  limited  by  the  regulations  of  the  Superin- 
tendent, has  no  force.  Proceedings  wholly  without  authority 
will  at  any  time  be  declared  void  by  the  Superintendent  on  ap- 
plication to  him,  with  notice  to  the  party  interested  in  sustaining 
them.  The  proceeding  under  consideration  is  not  only  void  for 
want  of  authority  in  the  commissioners  of  Barrington  to  make 
an  alteration  in  a  joint  district  without  the  concurrence  of  the 
commissioners  of  Tyrone,  but  it  is  wholly  inoperative  for  want 
of  the  legal  notice  required  by  law  to  be  served  on  the  trustees 
of  a  district  when  an  alteration  is  made  in  it  without  their  con- 
sent. It  does  not  appear  that  any  such  notice  was  ever  given  ; 
and  it  would  surely  conduce  very  little  to  the  ends  of  justice  to 
sustain  a  void  proceeding,  if  such  an  exercise  of  power  were  pos- 
sible, on  the  mere  ground  that  it  had  not  been  made  a  subject  of 
appeal  within  the  time  prescribed  by  regulation,  when  the  party 
interested  in  vacating  it  had  no  notice  of  such  proceeding.  Re- 
gulations prescribing  the  period  within  which  proceedings  shall 
be  objected  to,  necessarily  suppose  a  notice  to  the  party  thus  re- 
stricted by  the  limitation  of  time. 

The  same  observations  apply  to  the  failure  of  the  appellants 
to  object  to  the  refusal  of  the  commissioners  to  apportion  to  joint 
district  No.  6  its  proper  share  of  the  public  money.  It  does  not 
appear  that  the  trustees  had  any  notice  of  that  proceeding  until 
they  made  application  for  the  money,  to  which  they  consider- 
ed the  district  entitled;  and  it  is  sufficient  that  the  appeal  was 
made  within  thirty  days  after  the  facts  came  to  their  knowledge. 

The  course  of  the  commissioners  of  Barrington  appears  to  the 
Superintendent  to  have  been  irregular  from  beginning  to  end, — 
They  will  find  in  the  law  no  authority  for  depriving  a  school 
district  of  its  share  of  the  public  money,  because  the  trustees 
have  not  made  an  accurate  report.  If  the  commissioners  be- 
lieved that  the  trustees  of  joint  district  No.  6  had  made  a  false 


176  CASES    DECIDED    BY    THE 

report,  with  the  intent  of  procuring  for  the  district  more  thatt  its 
just  proportion  of  the  public  money,  t^iey  should  have  commenc- 
ed a  prosecution  for  the  penalty  annexed  to  the  offence  by  sec. 
96,  page  485,  1  R.  S.  If  they  deemed  the  report  merely  inac- 
curate, without  any  intention  to  defraud,  they  should  have  re- 
served the  money,  to  which  the  district  was  entitled,  until  the 
trustees  had  an  opportunity  of  correcting  the  error.  If  a  school 
district  has  forty  scholars,  and  the  trustees  report  forty-five,  the 
district  ought  not  to  be  deprived  of  its  public  money,  nor  should 
its  equitable  rights  be  disregarded.  It  should  receive  so  much 
as  its  actual  number  of  children  entitle  it  to;  and  the  trustees 
should  be  prosecuted  for  rendering  a  false  report,  unless  the  error 
was  unintentional,  in  which  case  an  opportunity  should  be  given 
to  correct  it. 

Upon  a  full  view  of  all  the  circumstances  of  the  case  it  is  de- 
cided, that  the  proceedings  of  the  commissioners   of  common 


schools  of  the  town  of  Barrington,  in  annexing  to  school  district  :^liC 
No.  8,  certain  inhabitants  belonging  to  joint  district  No.  6  in  i^^ 
Barrington  and  Tyrone,  on  the  5th  January,  1833,  were  void  I 

and  of  no  effect,  and  that  said  inhabitants  still  belong  to  said  *^- 
joint  district. 

And  it  is  ordered,  that  the  commissioners  of  common  schools 
of  said  town  of  Barrington  do  apportion  to  said  joint  district,  out 
of  the  next  public  moneys  which  shall  come/into  their  hands 
the  sum  which  said  district  should  have  received  on  the  first 
Tuesday  of  April  last,  according  to  the  principles  ot  this  deci- 
sion. 

This  order  is  not  intended  to  prevent  such  transfer  of  the  in- 
habitants of  joint  district  No.  6  to  district  No.  8,  Barrington,  as 
the  convenience  of  the  former  or  the  interest  of  the  latter  may 
require.  No  alteration,  however,  can  be  made,  except  with  the 
concurrence  of  the  commissioners  of  Tyrone.  Should  the  lat- 
ter refuse,  on  application  to  them,  to  do  what  justice  requires, 
an  appeal  may  be  made  to  the  Superintendent,  and  he  will  take 
care  that  the  rights  of  the  parties  are  not  prejudiced  by  such  re- 
fusal. 

The  Trustees  of  school  district  No.  2  in  the  towns 
of  Italy  and  Prattsburgh,  against  the  inhabitants 
of  said  district. 

Illegal  votes  not  affecting  the  result  do  not  render  proceedings  void. 
Commissioners  cannot  give  a  second  notice  tor  the  organization  of  a  new  district 
where  a  meeting  has  been  held  and  officers  chosen  under  the  first  notice. 

The  facts  of  this  case  aie  given  in  the  Superintendents 
order. 


SUPERlTSTTElNrDENT    OP   COMMON    SCHOOLS.  177' 


iK 


fy  tFoHN  A.  Dix,  June  13,  1834.  On  the  8th  of  March 
last,  the  taxable  inhabitants  of  school  district  No.  2  in  the  towns 
of  Italy  and  Prattsburgh,  at  a  meeting  held  for  the  purpose  oi' 
organizing  said  district,  proceeded  to  the  election  of  district  of- 
jicers,  and  fixed  a  site  for  the  school-house.  The  site  was  se- 
lected by  a  vote  of  thirteen  to  nine.  Adjourned  meetings  were 
held  on  the  15th  and  29th  March,  and  on  the  19th  April,  for  the 
purpose  of  making  arrangements  to  build  a  school-house,  furnish 
it  with  necessary  appendages,  &c.  At  the  meeting  last  mention- 
ed, a  contention  arose  as  to  the  legality  of  the  proceedings  of  the 
meeting  on  the  8th  March,  on  account  of  certain  votes  alleged 
to  have  been  given  by  persons  not  qualified  to  take  part  in  said 
proceedings.  Of  these  votes  two  were  said  to  have  been  given 
in  favor  of,  and  one  against  the  site  selected.  In  consequence 
of  this  objection  to  the  proceedings  of  the  8th  March,  application 
was  made  to  the  commissioners  of  common  schools  to  renew 
their  notice  for  a  vneeting  to  organize  the  district,  and  to  treat 
the  previous  proceedings  as  null  and  void.  The  notice  Avas  giv- 
en by  the  commissioners  pursuant  to  the  application  to  them,  and 
on  the  29th  April  a  meeting  was  held,  new  district  officers  with 
one  exception  were  chosen,  and  another  site  fixed  for  the  school- 
house.  To  these  proceedings  certain  inhabitants  object,  on  the 
ground  that  the  first  meeting  was  legal  notwithstanding  that 
illegal  votes  were  given  as  alleged.  The  appeal  has  been  regu- 
larly served  on  the  parties  interested  in  sustaining  the  proceed- 
ings of  the  last  meeting  and  noticed  for  a  hearing  on  the  fourth 
of  June.  No  answer  having  been  received,  the  case  is  now  de- 
cided on  the  testimony  produced  by  the  appellants. 

The  first  question  to  be  determined  is,  whether  the  alleged 
illegal  votes,  if  given  as  is  stated,  would  have  rendered  the  pro- 
ceedings of  the  meeting  on  the  8th  March  void. 

The  rule  is  well  settled  that  proceedings  will  not  he  vitiated 
by  illegal  votes  unless  a  different  result  would  have  been  pro- 
duced by  excluding  such  votes.  If  the  illegal  votes  could  not 
l)y  possibility  affect  the  result,  the  proceedings,  in  relation  to 
■which  they  were  given,  will  not  be  disturbed  on  account  of  such 
votes.  In  this  case  there  were  thirteen  votes  in  favor  of  the  site 
selected  and  nine  against  it.  Deducting  from  the  former  the  two 
illegal  votes  alleged  to  have  been  given,  and  tliere  would  still  be 
a  majority  of  two  votes  in  favor  of  it.  The  result  would  have 
been  the  same,  whether  the  illegal  votes  had  been  taken  or  not. 
There  is  no  pretext,  therefore,  for  disturbing  the  proceedings  for 
the  reason  assigned ;  and  the  act  complained  of  on  the  part  of 
the  commissioners  of  common  schools,  with  a  viev/  to  annul 
them,  was  wholly  unauthorized  and  void.  In  undertaking  to 
renew  the  notice  to  the  inhabitants  to  hold  a  meeting  for  t^e 

12 


If 9  CASES    DECIDED   BY    THE 

purpose  of  re-organizing  the  district,  re-appointiiig  district  «ffi-* 
cers  and  selecting  a  new  site,  the  commissioners  have  altogether 
mistaken  and  exceeded  their  powers.  The  only  cases  in  which 
such  a  notice  could  be  lawfully  renewed,  are  those  specified  in 
sec.  57,  page  477,  1  R.  S.  that  is,  where  the  inhabitants  refuse 
or  neglect  to  assemble  on  the  first  notice,  or  where  a  district  hav- 
ing been  formed  and  organized,  is  afterwards  dissolved,  so  that 
no  competent  authority  exists  therein  to  call  a  special  district 
meeting.  Neither  of  these  cases  have  occurred,  and  the  com- 
missioners had,  therefore,  no  authority  to  act. 

If  any  person  was  aggrieved  by  the  proceedings  of  the  meet- 
ing on  the  8th  March,  he  should  have  appealed  to  the  Superin- 
tendent of  Common  Schocis  for  redress,  and  there  would  be  no 
just  cause  of  complaint  if  in  setting  aside  the  proceedings  of  the 
29th  April  no  op|X)rtunity  should  be  given  to  reconsider  those  of 
the  8th  March. 

The  right  of  the  inhabitants  to  review  their  proceedings,  so 
far  as  to  change  the  site  selected  for  the  school-house,  was  per- 
fect. The  act  of  Feb.  17,  1831,  provides  that  "whenever  a 
school-house  shall  have  been  built  or  purchased  for  a  district,  the 
site  of  such  school-house  shall  not  be  changed,''  &c.  except  in 
a  certain  manner.  In  this  case  a  school-house  had  neither  been 
built  nor  purchased,  and  the  taxable  inhabitants  had  an  undoubt- 
ed right  to  change,  by  a  majority  of  votes,  the  site  originally  select- 
ed. But  as  the  meeting  on  the  29th  April  was  illegally  called 
by  the  commissioners  and  cannot,  therefore,  be  sustained,  and  as 
the  site  may  have  been  fixed  at  the  first  meeting  without  due  de- 
liberation, the  Superintendent  deems  it  due  to  a  regular  obser- 
vance of  the  requirements  of  the  law,  as  well  as  to  the  best  in- 
terests of  the  district,  which  are  intimately  connected  with  a  ju- 
dicious selection  of  a  site  for  a  school-house,  to  submit  the  ques- 
tion again  to  the  inhabitants. 

It  is  accordingly  decided,  that  the  proceedings  of  the  meeting 
held  on  the  29th  April  aforesaid  are  void  and  of  no  effect,  and 
that  the  officers  chosen  on  the  8th  March  are  the  proper  officers 
of  said  district  No.  2.  And  it  is  ordered  that  the  trustees  of  said 
district  proceed  forthwith  to  call  a  special  meeting  of  the  inhabi- 
tants for  the  purpose  of  considering  whether  any  change  ought 
to  be  made  in  the  site  of  the  district  school-house. 


'.t, 


SUPERINTENDENT    OF   COMMON   SCHOOLS.  179 

John  Owens,  against  the  Commissioners  of  Common 
Schools  of  the  town  of  Galen. 

If  a  district  fills  a  vacancy  in  the  office  of  trustee  after  one  month,  by  an  elec- 
tion, the  election  is  valid,  and  the  commissioners  cannot  at  a  subsequent  time 
make  an  appointment  to  the  same  vacancy. 

The  facts  of  this  case  are  fully  stated  ia  the  Superintendent's 
decision. 

By  John  A.  Drx,  June  14,  1834.  On  the  14th  day  of 
March  last  Joseph  Pettis,  one  of  the  trustees  of  school  district  No. 
12  in  the  town  of  Galen,  Wayne  county,  removed  from  said 
town;  and  on  the  11th  of  April  ensuing  the  two  remaining  trus- 
tees called  a  special  meeting,  for  the  purpose  of  filling  the  vacan- 
cy occasioned  by  his  removal. 

On  the  17th  of  April  the  meeting  was  held,  in  pursuance  of 
the  notice  given  by  the  trustees,  and  John  Owens  was  duly  elect- 
ed to  fill  the  vacancy  occasioned  by  the  removal  of  said  Pettis. 

On  the  28th  of  April  the  commissioners  of  common  schools  of 
Galen,  having  been  applied  to  for  the  purpose,  appointed  John 
Richmond  a  trustee  to  fill  said  vacancy,  on  the  ground  that  John 
Owens  was  not  elected  within  one  month  after  the  removal  of 
Pettis,  and  that  his  election  was  consequently  void.  From  this 
proceeding  John  Owens  appeals. 

The  Superintendent  is  of  opinion  that  the  election  of  Owens 
was  valid.  The  right  of  the  commissioners  to  make  an  appoint- 
ment at  any  time  after  the  expiration  of  one  month,  and  before 
the  inhabitants  had  filled  the  vacancy  by  election,  was  perfect. 
But  it  was  necessary,  in  order  to  give  validity  to  the  appoint- 
ment, that  the  power  conferred  on  them  should  be  exercised  pre- 
viously to  any  action  in  the  premises  on  the  part  of  the  district. 
The  intention  of  the  law  was  to  provide  for  supplying  vacancies, 
in  case  it  were  not  done  in  the  usual  manner;  and  it  was  for  this 
reason  only  that  a  conditional  authority  to  fill  them  was  confer- 
red on  the  commissioners.  The  trustees  should  have  provided 
for  an  election  within  one  month  after  the  occurrence  of  the  va- 
cancy ;  but  the  Superintendent  deems  it  inconsistent  with  the 
spirit  of  the  elective  system  as  well  as  the  intention  of  the  com- 
mon school  acts,  to  construe  the  limitation  of  time  into  an  ab- 
solute forfeiture  of  the  right  of  choice.  The  forfeiture  would 
have  been  absolute  if  the  commissioners  had  made  an  appoint- 
ment after  the  lapse  of  a  month  and  before  an  election  by  th^ "dis- 
trict; but  they  neglected  to  do  so,  and  as  the  action  of  the  district 
was  not  inconsistent  with  any  positive  prohibition,  the  proceeding 
mast  be  sustained. 

It  is  therefore  ordered,  that  the  election  of  John  Owens  be  con- 
firmed, and  the  appointment  of  John  Richmond  be,  and  it  is 
hereby  declared  to  be  null  and  void. 


166  CASES    DECIDED   BY   THE 

The  Trustees  of  school  district  No.  — —  in  the  mmn 
of  Warren,  ex  parte. 

The  power  of  inspectors  over  the  course  of  studies  in  schools  should,  ordinarily, 
be  confined  to  a  general  supervision  of  such  studies. 

This  was  ah  application  from  the  trustees  of  a  school  district 
in  the  town  of  Warren,  for  the  Superintendent's  directions,  in  a 
case  where  the  inspectors,  in  examining  into  the  condition  of  the 
district  school,  had  given  special  directions  as  to  the  number  of 
hours  during  which  individual  children  should  be  instructed  in 
particular  branches. 

By  John  A.  Dtx,  June  30,  1834.  The  inspectors  of  com- 
mon schools  are  expressly  authorized  by  law  to  "  give  their  ad- 
vice and  direction  to  the  trustees  and  teachers  of  such  schools,  as 
to  the  government  thereof,  and  the  course  of  studies  to  be  pur- 
sued therein,"  This  authority  cannot  very  well  be  limited  in  its 
exercise  by  any  general  rules.  If  it  should  be  abused  in  such  a 
manner  as  to  oppress  the  teacher  or  the  scholars,  the  Superinten- 
dent of  Common  Schools  has  unquestionably  the  right,  on  ap-* 
plication  to  him,  to  inquire  into  the  facts  and  redress  their 
grievances;  and  I  should  deem  it  my  duty  to  institute  such  an 
inquiry,  on  a  complaint  regularly  made  in  the  manner  specified 
by  the  regulations  of  the  Superintendent. 

With  regard  to  the  extent  of  the  inspectors'  authority,  this  can 
only  be  determined  in  each  case,  with  a  reference  to  the  attend- 
ing circumstances.  The  intention,  however,  so  far  as  it  can  be 
gathered  from  the  language  of  the  law,  was  to  give  them  a  ge- 
neral supervision  of  the  course  of  studies;  and  I  think  they 
should  not,  in  ordinary  cases,  consider  themselves  called  on  to 
regulate  mere  details.  Whether  a  child  should  read  in  one  book 
or  another,  or  write  one  line  or  six  per  day  in  his  copy  book,  are 
matters  which  should  be  left  to  the  teacher.  The  fimctions  of  the 
inspectors  are  of  a  higher  order,  and  they  should  be  content  with 
exercising  them  according  to  the  spirit  of  the  law,  from  which  their 
authority  is  derived.  If  the  teacher  is  incompetent  or  unworthy 
of  his  {^ce,  they  may  annul  his  certificate;  but  they  ought  not  to 
strip  him  of  all  authority  by  entering  into  the  little  arrangements 
of  his  school,  and  undertaking  to  determine  the  ability  of  each 
scholar  to  accomplish  the  particular  task  assigned  to  him.  I 
doh^qt  wish  to  be  understood,  however,  as  intimating  that  the 
inspectors  may  not,  in  case  of  any  error  on  the  part  of  the 
teacher  in  this  respect,  point  out  and  require  him  to  correct  it. 
The  propriety  of  their  interference  must,  as  I  have  already  ob- 
served, depend  on  the  circumstances  of  the  case.  But  ordinarily 
their  duty  wo^ld  consist  in  a  general  supervision  of  the  govern- 


SUPERINTENDENT    OP    COMMON    SCHOOLS.  181 

ment  and  course  of  studies  established  in  the  schoc^  within  their 
jurisdiction. 

The  Trustees  of  school  district  No.  15  in  the  town  of 
Cicero,  against  the  Commissioners  of  Common 
Schools  of  said  town. 

When  defective  reports  are  made  by  trustees  of  school  districts,  commissioners 
should  give  time  to  correct  them,  and  retain  a  portion  of  the  pubUc  money  in 
their  hands  to  abide  the  result  of  such  correction. 

The  facts  of  this  case  are  stated  in  the  Superintendent's  order. 

By  John  A,  Dix,  June  30,  1834.  On  the  first  Tuesday  of 
April  last  the  commissioners  of  common  schools  of  the  town  of 
Cicero  apportioned  the  public  moneys  allotted  to  said  town  among 
the  school  districts  therein.  From  this  apportionment  school  dis- 
trict No.  15  was  excluded,  in  consequence  of  the  omission  of  the 
trustees  to  state  in  their  annual  report  for  1833  the  time,  during 
which  their  school  had  been  taught  by  a  quahfied  teacher.  Al- 
though the  commissioners  acted  strictly  according  to  law,  in  with- 
holding the  money  from  district  No.  15,  by  reason  of  the  defect 
referred  to,  they  should  have  retained  the  money  in  their  hands 
to  be  distributed  ultimately  among  the  other  districts  in  the  town, 
or  to  be  given  to  No.  15,  in  case  the  trustees  on  notice  to  them, 
had  satisfied  the  commissioners  that  the  mistake  was  inadverteut. 
The  commissioners  will  see,  on  reflection,  the  propriety  of  afford- 
ing time  to  make  explanations,  where  any  doubt  exists  with  re- 
gard to  the  defects  which  frequently  exist  in  the  reports  of  school 
districts,  by  adverting  to  the  course  which  has  been  pursued  in 
the  present  case.  The  trustees  have  made  oath  that  the  error 
was  unintentional,  and  that  their  school  was  actually  taught  six 
raonths  during  the  year  1833  by  a  qualified  teacher.  But  in  or- 
der to  remedy  the  defect,  and  procure  their  proper  share  of  the  pub- 
lic money,  they  are  under  the  necessity  of  making  application  to 
the  Superintendent  of  Common  Schools ;  and  will,  perhaps,  be 
deprived  of  the  benefit  of  the  common  school  fund  for  a  whole 
year.  Although  the  commissioners  have  acted  strictly  according 
to  the  letter  of  the  law,  they  might  in  equally  strict  accordance 
with  its  spirit  have  avoided  the  inconveniences  referred  to  by  re- 
taining the  money,  and  making  its  eventual  application  depen- 
dent on  the  testimony  of  the  trustees,  with  regard  to  the  excep- 
tionable part  of  their  report.  These  remarks  are  not  designed  to 
censure  the  course  pursued  by  the  commissioners,  but  merely  to 
intimate  that  they  may,  in  the  exercise  of  that  guardianship 
over  all  the  districts  within  their  jurisdiction  with  which  the  law 
lias  clothed  them,  spare  themselves,  as  well  as  the  districts,  in- 

■^-Ki  f^ram  Ol*-Tr  .Ajfij*  "SCUi-;-   •:■■      .      '  •'    "iUnVfT'ir^f^* 


1^  CASES    DECIDED   BY    THE 


■t  *  V- 


convenience  by  supposing  unintentional  error  in  returns,  which 
are  on  their  face  defective. 

It  is  ordered  that  the  commissioners  of  common  schools  of  Ci- 
cero pay  to  the  trustees  of  school  district  No.  16  in  said  town, 
out  of  any  public  moneys  now  in,  or  which  shall  hereafter  come 
into,  their  hands,  such  sum  as  said  district  would  have  been  en- 
titled to  receive  in  April  last,  if  the  report  of  the  said  trustees  for 
the  year  1833,  had  set  forth  that  a  school  had  been  regularly 
taught  in  said  district  six  months  during  the  year  by  a  quahfied 
teacher. 

The  Trustees  of  school  district  No.  2  in  the  town  of 
New-Lisbon,  ex  parte. 

When  the  site  of  a  school-house  has  been  fixed,  it  may  be  changed  by  a  majori- 
ty of  votes  at  any  time  before  the  school-house  is  built  or  purchased. 

A  site  for  a  school-house  was  fixed  by  vote  of  the  inhabitants 
oi  school  district  No.  2  in  the  town  of  New-Lisbon;  but,  before 
the  school-house  was  built,  a  special  meeting  was  called,  and 
the  site  was  changed  to  another  place  by  the  votes  of  a  majority 
of  the  inhabitants.  The  question  raised  in  this  case  was,  whe- 
ther the  site,  having  been  once  selected,  could  be  changed  by  a 
majority  of  votes. 

By  John  A.  Dix,  July  5,  1834.  A  majority  of  the  inhabi- 
tants of  a  school  district  may  fix  the  site  of  the  school-house 
where  there  is  none,  to  which  the  district  has  a  legal  title,  and  a 
majority  may  change  it  at  any  time  before  the  school-house  has 
been  purchased  or  built.  No  school-house  having  been  built  in 
this  case,  and  the  district  being  without  one,  the  resolution  chang- 
ing the  site  by  a  majority  of  votes  was  legal. 

The  Trustees  of  school  district  No.  3  in  the  town  of 
Clayton,  ex  parte. 

Trustees  cannot  sue  an  associate  trustee  for  neglecting  to  discharge  the  duties  of 

his  office. 

In  this  case  one  of  the  trustees  of  a  school  district  wholly  ne- 
glected to  perform  the  duties  of  his  office,  though  not  having  re- 
fused to  accept  it.  The  two  associate  trustees  commenced  a  suit 
against  him  for  the  penalty  provided  in  such  cases,  but  a  ques- 
tion having  arisen  as  to  their  right  to  bring  the  action,  the  Su- 
perintendent's opinion  was  solicited  by  them. 

By  John  A.  Dix,  July  14,  1834.  I  am  of  opinion  that  the 
109th  sec.  page  487,  IKS.  gives  the  trustees  of  common 
schools  no  power  to  sue  an  associate  trustee  for  neglecting  to 
perform  his  duties.     This  case  appears  to  me  to  be  one  not  ex- 


SUPERINTENDENT   OF   COMMON   SCHOOLS.  183 

pressly  provided  for,  and  therefore,  comes  within  the  provisions 
of  the  8th  sub.  of  sec.  20,  page  470,  1  R.  S.  The  suit  must 
therefore  be  brought  by  the  commissioners  of  common  schools. 

The  Trustees  of  joint  school  district  No.  2  in  the 
towns  of  Fishkill  and  Poughkeepsie,  ex  parte. 

When  an  old  school-house  is  sold  and  a  new  one  built,  a  district  cannot  raise  by 
tax  $400  in  addition  to  the  avails  of  the  sale  of  the  old  house. 

Persons  authorized  to  vote  for  district  officers,  may  vote  for  a  tax  though  they 
may  not  be  liable  to  be  assessed  for  it. 

In  joint  school  district  No.  2  in  the  towns  of  Fishkill  and 
Poughkeepsie,  a  tax  of  $400  was  voted  to  build  a  new  school- 
house.  The  trustees  were  then  authorized  to  sell  the  old  house 
and  to  apply  the  proceeds  of  such  sale,  together  with  the  ^00 
to  be  raised  by  tax,  to  the  erection  of  the  new  building.  The 
(pinion  of  the  Superintendent  as  to  the  validity  of  this  proceeding 
was  requested  ;  and  also  as  to  the  right  of  persons,  not  liable  to 
be  assessed  for  a  tax,  to  vote  for  it. 

By  John  A.  Dix,  July  15,  1834.  I  am  of  opinion  that  you 
cannot  raise  four  hundred  dollars  in  addition  to  the  avails  of  the 
sale  of  the  old  school-house,  for  the  purpose  of  building  a  new 
one,  without  first  obtaining  the  consent  of  the  commissioners  of 
common  schools.  The  intention  of  the  law  is  clear,  and  where- 
ver taxation  is  in  question  it  must  be  strictly  followed.  If 
more  than  $400  is  necessary,  the  commissioners  can  say  so  by 
giving  it  as  their  opinion  that  a  larger  sum  will  be  required,  which 
sum  they  must  specify.  The  most  simple  mode  of  proceeding 
would  be  to  sell  the  old  school-house,  and  after  ascertaining  the 
amount  of  the  avails,  vote  the  requisite  additional  sum.  But,  if 
such  requisite  sum,  together  with  the  avails  of  the  sale  exceeds 
$400,  the  certificate  of  the  commissioners  must  be  procured 
agreeably  to  the  provisions  of  sec.  64,  page  479,  1  R.  S. 

When  the  site  of  a  school-house  is  changed  the  avails  of  the 
sale  of  the  school-house,  and  of  the  site  on  which  it  stands,  must, 
by  the  act  of  Feb.  17,  1831,  be  apphed  to  the  payment  of  ex- 
penses in  procuring  a  new  site,  erecting  a  school-house,  &c. 
This  provision  is  to  be  taken  in  connexion  with  the  64th  sec- 
tion of  the  act  relating  to  common  schools,  and  the  avail  of 
every  such  sale  must  go  to  the  reduction  of  the  amount  which 
the  inhabitants  of  a  district  may  vote  under  the  section  referred 
to.  There  is  no  hardship  in  this  construction  of  the  law.  If  a 
greater  smn  is  required,  it  is  only  necessary  to  apply  to  the  com- 
missioners of  common  schools  to  certify  that  it  ought  to  be  rais- 
ed. 

All  persons  entitled  to  vote  for  the  election  of  school-district 


184  CASES    DECIDED    BY    TH-E      .»!»>► 

officers  may  vote  foi*  a  tax  for  school  district  purposes,  even  though 
they  may  not  be  Uable  to  be  assessed  for  it. 

The  Commissioners  of  Common  Schools  of  the  town 
of  Rocklandy  ex  parte. 

A  commissioner  of  common  schools  is  answerable  only  for  moneys*  which  come 
into  his  hands. 

In  the  year  1833,  the  collector  of.  the  town  of  Rockland  paid 
the  moi^ys  levied  upon  the  town  for  common  schools  to  one  of 
the  commissioners  and  took  his  receipt.  The  commissioner  soon 
after  receiving  the  money,  absconded  with  it ;  and  his  two  as- 
sociates requested  the  opinion  of  the  Superintendent  as  to  their 
liability  for  the  sum  thus  abstracted. 

By  John  A.  Dix,  Jul]/  15,  1834.  I  have  received  your  let- 
ter, desiring  to  know  whether  you  can  be  held  answerable  for 
moneys  paid  to  one  of  your  associates  and  lost  in  consequence  of 
his  running  away.  You  are  answerable  only  for  such  moneys 
as  have  come  into  your  hands.  If  the  moneys  referred  to  were 
paid  directly  to  him  as  a  commissioner  of  common  schools  by 
the  town  collector,  the  town  has  no  remedy  either  against  you 
or  the  collector  for  it.     The  defaulter  is  alone  responsible. 

The  inhabitants  of  joint  school  district  No.  11  in  the 
tovrn  of  Deerfield,  and  No.  14  in  the  town  of  Mar- 
cy,  ex  parte. 

The  Superintendent  has  only  an  appellate  jurisdiction  in  the  formation  and  ite- 
ration of  school  districts. 

This  was  an  application  to  the  Superintendent  to  divide  a 
school  district  and  form  a  new  one,  without  any  previous  appli- 
cation to  the  commissioners  of  common  schools. 

By  John  A.  Dix,  July  16,  1834.  The  right  of  the  Super- 
intendent of  common  scnools  to  form  or  alter  school  districts, 
arises  only  in  cases  of  appeal  from  thedecisions  of  the  commisioners 
of  common  schools,  to  whom  the  power  is  given  by  law  in  the 
first  instance.  AppUcation  must  be  made  in  this  case  to  the 
commissoners  of  common  schools  of  the  two  towns,  and  if  they  re- 
fuse to  act,  or  if  they  make  the  alteration  and  any  person  shall 
think  himself  aggrieved  by  their  proceedings,  an  appeal  may  be 
made  to  the  Superintendent. 


supeirintendent  op  common  schools^  185 

(anonymous.) 

Trustees  cannot  reassess  a  tax  to  make  up  a  defiekncy  on  account  of  the  inabi- 
lity of  an  individual  to  pay  his  portion;  nor  can  they  m^e  out  a  new  rate  bill 
in  such  a  case. 

By  John  A.  Dix,  July  17,  1834.  The  trustees  of  a  school 
district  have  no  right  to  reassess  a  tax  upon  the  inhabitants 
where  the  collector  has  been  unable  to  collect  the  whole  amount 
on  the  tax  list  put  into  his  hands.  In  case  of  a  rate  bill  to  pay 
teachers'  wages,  the  trastees  may  exempt  such  of  the  inhabi- 
tants as  they  may  consider  unable  to  pay.  But  the  rate  bill  hav- 
ing been  put  into  the  hands  of  the  collector,  they  cannot  recal  it 
the  purpose  of  making  new  exemptions.  If,  however,  any  of  those 
for  who  have  been  included  in  the  rate  bill  prove  unable  to  pay, 
the  trustees  would  undoubtedly  be  justifiable  in  paying  the  defi- 
ciency out  of  any  public  moneys  in  their  hands,  unless  those  mo- 
neys have  been  expressly  appropriated  by  a  vote  of  the  district  to 
a  particular  term  of  the  year.  In  this  case  the  inhabitants  may 
be  called  tc^ethei*  and  vote  so  much  of  the  money  thus  appro- 
priated as  is  necessary  to  be  applied  to  that  object. 

In  case  of  a  tax  list  to  raise  money  to  build  a  school-house, 
furnish  it  with  fuel,  &c.,  the  inhabitants  have  full  power  to  vote 
a  new  tax  to  make  up  any  deficiency  occasioned  by  the  inabilf- 
ty  of  an  individual  to  pay  his  proportion  where  there  has  been 
no  default  on  the  part  of  the  collector,  and  may,  therefore,  save 
the  trustees  harmless  on  their  contracts  for  the  construction  of  the 
house,  &c. 

It  is  only  in  these  modes  that  the  deficiencies  referred  to  can 
be  supplied.  The  law  gives  no  express  authority  to  trustees  to 
reassess  any  part  of  a  tax,  and  they  cannot  take  it  by  implica- 
tion. Although  such  an  authority  is  sometimes  desirable,  yet  il 
would  be  liable  to  abuse,  and  would  be  likely  to  lead  ,to  great 
negligence  on  the  part  of  trustees.  On  the  whole  the  law  is,  I 
think,  better  as  it  stands.  If  trustees  are  prompt,  vigilant  and 
judicious  in  their  arrangements,  they  will  rarely  find  themselves 
involved  in  difficulty  ;  and  in  the  few  cases  of  unavoidable  em- 
barrassment, which  may  occur  from  the  causes  referred  to,  a  re- 
medy will  generally  be  found  in  the  course  above  indicated. 


■<!a 


186  CASES    DECIDED    BY   THE 

The  Trustees  of  school  district  No  4  in  the  town  of 
Alexander,  ex  parte. 

Notices  for  special  meetings  must  be  in  writing. 

A  written  notice  given  by  the  clerk  of  a  district  in  pursuance  of  a  verbal  direc- 
tion from  the  trustees  is  good.  ' 

The  proceedings  of  a  meeting  held  without  any  attempt  to  give  a  legal  notice  aj>e 
not  valid. 

In  this  case  the  trustees  of  school  district  No.  4  in  the  town  of 
Alexander,  directed  the  clerk  verbally  to  call  a  special  meeting 
of  the  inhabitants.  The  notices  were  given  verbally,  and  in 
every  case  but  one,  more  than  five  days  before  the  time  appoint- 
ed for  the  meeting.  The  meeting  was  held  accordingly,  but  se- 
veral of  the  inhabitants  were  absent.  The  question  submitted 
was,  whether  the  proceedings  of  the  meeting  held  in  pursuance 
of  such  a  notice  were  valid  ? 

By  John  A.  Dix,  July  31,  1834.  A  notice  to  the  inhabi- 
tants of  school  districts  to  attend  a  special  meeting  must  be  in 
writing,  and  it  must  be  read  in  the  hearing  of  each  inhabitant 
qualified  to  vote,  or  in  case  of  his  absence,  a  copy  of  so  much  of 
the  notice  as  relates  to  the  time  and  place  of  meeting  must  be 
left  at  the  place  of  his  abode  at  least  five  days  before  the  time 
of  the  meeting.  See  sec.  .56,  and  sub.  No.  2  of  sec.  74,  of  the 
statute  entitled  "  Of  common  schools." 

If  the  trustees  of  a  school  district  give  a  verbal  direction  to  the 
clerk  to  call  a  special  meeting,  and  the  clerk  prepares  and  serves 
a  written  notice  in  the  manner  above  prescribed,  it  is  sufficient, 
and  the  proceedings  of  the  meeting  held  in  pursuance  of  such 
notice  will  be  deemed  valid  precisely  as  though  the  trustees  had 
given  a  written  direction  to  the  clerk. 

If  the  clerk  undertakes  to  give  a  notice  in  the  manner  provid- 
ed by  the  statute,  and  has  failed  unintentionally  to  serve  it  on  all 
the  persons  entitled  to  receive  it,  the  proceedings  of  the  meeting 
are  not,  by  reason  of  such  failure,  void.  Sec.  63  of  the  statute 
above  referred  to,  provides  that  "the  proceedings  of  no  district 
meeting,  annual  or  special,  shall  be  held  illegal  for  want  of  a 
due  notice  to  all  the  persons  qualified  to  vote  thereat,  unless  it 
shall  appear  that  the  omission  to  give  such  notice  was  wilful 
and  fraudulent."  This  provision  was  intended  for  cases  where 
through  accident  or  mistake  the  proper  legal  notice  is  not  given  to 
all  who  are  entitled  to  it ;  but  it  cannot  be  construed  to  extend 
to  cases  in  which  no  attempt  is  made  to  give  the  notice  required 
by  law  to  any  of  the  inhabitants.  If  notice  is  given  verbally, 
and  all  attend,  the  defect  is  not  cured  by  such  attendance  :  the 
persons-  so  meeting  are  not  legally  assembled,  and  they  are 
wholly  without  authority  to  act.  A  notice  for  another  meeting 
should  be  given,  and  all  proceedings  under  the  meeting  which 
has  Ijeen  held  should  be  abandoned. 


SUPERlNTESrofeUf   OF   COTSlrfCflfJ' SCHOOLS^  187 

'••''•  (anonymous.) 

A  tax  to  build  a  school-house  cannot  be  expended  until  a  site  is  chosen  and  a  ti- 
tle to  it  obtained. 
Promissory  notes  should  not  be  taken  for  taxes. 

By  John  A.  Dix,  August  2,  1834.  Trustees  of  school  dis- 
tricts have  no  right  to  apply  money  raised  by  tax  for  the  con- 
struction of  a  school-house  to  the  object  in  view,  until  a  site  has 
been  chosen  by  vote  of  the  inhabitants;  nor  should  the  money 
be  expended  until  a  clear  undisputed  title  to  the  site  has  been 
obtained.  If  there  are  liens  on  the  property,  they  should  be  re- 
moved before  any  expenditure  is  made. 

Promissory  notes  given  for  taxes  are  altogether  unauthorized 
by  law.  The  collector,  on  receiving  a  warrant  from  the  trus- 
tees, should  proceed  at  once  to  execute  it.  There  is  no  excuse 
for  deviating  from  the  requirements  of  the  law,  and  if  officers  of 
school  districts  take  upon  themselves  to  pursue  courses  not  au- 
thorized, they  will  be  personally  responsible  for  any  loss  which 
may  result  to  the  districts  in  consequence  of  such  departure  from 
prescribed  rules  of  proceeding. 

(anonymous.) 

Trustees  are  unwarrantable  under  the  general  authority  to  employ  all  teachers, 
if  they  refuse  to  employ  any,  and  thus  deprive  the  district  of  its  public  mo- 
ney. 

By  John  A.  Dix,  September  2,  1834.  The  trustees  of 
school  districts  are  invested  by  the  statute  with  the  authority  of 
contracting  with  and  employing  all  teachers ;  and  they  may,  un- 
der this  general  authority,  discontinue  a  teacher  even  though  he 
maybe  properly  qualified.  If  they  violate  their  contract  with 
him  they  will  be  answerable  in  damages ;  but  this  is  a  ques- 
tion between  them  and  the  teacher.  The  right  to  employ  a 
teacher,  however,  is  not  to  be  construed  to  authorize  the  trustees 
to  refuse  to  employ  any  teacher  whatever,  and  thus  deprive  the 
district  of  a  school  altogether.  It  is  their  duty  to  see  that  a  school 
is  kept  as  the  law  intends. 

The  Commissioners  of  Common  Schools  of  the  town 
of  Deerfield,  ex  parte. 

Commissioners  of  common  schools  must  furnish  answers  to  appeals  brought 

from  their  decision  in  refusing  to  alter  a  school  district. 
Notice  must  be  given  to  the  real  parties  in  interest,  where  the  commissioners  of 

common  schools  take  no  pains  to  sustain  their  proceedings. 

This  was  an  apphcation  for  the  direction  of  the  Superinten- 
dent as  to  the  duty  of  the  commissioners  of  common  schools  with 
regard  to  answering  an  appeal  in  a  case  where  they  had  refus- 


188  CASES    DECIDED   BY   THE 

ed  tx)  divide  a  school  district  and  an  appeal  had  been  brought  £rony 
their  decision. 

By  John  A.  Dix,  Siepfember  2,  1834.  Where  the  com- 
missioners of  common  schools  refuse,  on  application  to  them,  to 
alter  a  school  district^  they  ought,  in  CEise  of  appeal,  to  make  the 
statements  required  Joy  the  regulations.  The  r^ulations  being 
established  by  the  Superintendent  of  Common  Schools  under  the 
authority  conferred  on  him  by  law,  are  to  be  deemed  a  part  of 
the  law  itself,  and  are  equally  binding  on  all  concerned.  Al- 
though the  commissioners  may  not  in  the  case  referred  to  by  you, 
be  real  parties  in  interest,  k  is  manifest  that  they  must  be  par- 
ties to  the  appeal  which  is  brought  from  their  decision ;  and  it  is 
their  duty,  therefore,  to  furnish  an  answer  to  it.  The  reasons 
of  the  commissroners  for  refusing  to  act,  constitute  their  answer 
to  the  appeal.  If  the  appellants  furnish  a  map  of  the  district, 
the  accuracy  of  which  is  not  disputed  by  the  commissioners, 
the  latter  need  not  furnish  another,  but  their  assent  to  its  accu- 
racy will  be  considered,  so  far,  as  an  agreement  upon  the  facts 
of  the  case.  Where  the  commissioners  have  taken  no  pains 
to  sustain  their  decisions,  the  Superintendent  has  required  per- 
sons appealing  from  such  decisions  to  give  notice  of  the  appeal 
to  the  real  parties  interested  in  resisting  it,  in  order  that  the 
whole  matter  may  be  fairly  and  fully  presented  to  him ;  and  in 
such  cases  statements  under  oath  have  been  received  from  the 
parties  last  referred  to. 

(anonymous.) 

Trustees  may  sue  for  trespass  in  case  the  district  school-house  is  forcibly  entered 
without  their  consent. 

By  John  A.  Dix,  September  5,  1834.  Trustees  of  school 
districts  have  by  law  "  the  custody  and  safe  keeping,  of  the  dis- 
trict school-house,"  and  they  may  sue  for  trespsiss  if  it  is  forcibly 
entered  without  their  consent.  The  power  is  not  expressly  con- 
ferred on  them  by  statute,  but  it  is  necessarily  implied  in  the 
authority  above  given,  as  well  as  in  that  of  holding  district  pro- 
perty "  as  a  corporation,"  for  they  cannot  hold  it  without  the  pow- 
er to  defend  the  possession.  Indeed  the  general  maxim  of  law. 
which  gives  to  persons  charged  with  the  custody  of  property, 
the  right  to  protect  it  and  recover  damages  for  injuries  it  may 
have  sustained,  is  a  sufficient  foundation  for  the  exercise  of  the 
power.  The  trustees,  being  invested  with  the  custody  and  safe 
keeping  of  the  house,  must  be  deemed  to  be  actually  and  law- 
fully in  possession  of  it;  and  they  have,  therefore  a  right  to  bring 
an  action  against  intruders. 


SUPERINTENDENT    OP   COMMON    SCHOOLS.  189 

The  Commissioners  of  Common  Schools  of  the  town 
of  Gorham,  ex  parte. 

Commissioners  of  common  schools  must  make  an  annual  account  in  writing  to 
their  successors  in  oflBce  of  all  school  moneys  received  and  expended  by 
them. 

A  transfer  of  vouchers  is  not  a  sufficient  account. 

If  commissioners  neglect  to  account,  they  may  be  prosecuted  by  their  succes- 
sors. 

In  the  town  of  Gorham  one  of  the  commissioners  of  common 
schools  in  office  in  the  year  1833,  was  re-elected  in  1834,  and 
two  new  ones  were  chosen.  The  one,  who  was  re-elected,  re- 
moved soon  afterwards  from  the  town.  The  commissioners, 
whose  term  of  office  expired  in  1834,  rendered  no  account  of 
the  school  moneys  received  and  expended  by  them,  but  offered 
to  hand  over  to  their  successors  the  receipts  of  the  trustees  of 
school  districts  for  moneys  paid  to  them.  The  direction  of  the 
Superintendent  was  requested  as  to  the  proper  course  to  be  taken 
to  compel  them  to  account  in  writing. 

By  John  A.  Dix,  /September  17,  1834.  Under  section  35, 
page  473,  1  R.  S.  it  is  the  duty  of  the  commissioners  of  com- 
mon schools  to  render  to  their  successors  in  office  "a  just  and  true 
account"  of  all  moneys  received  and  expended  by  them.  This 
account  must  be  "in  writing,"  according  to  the  requirements  of 
the  same  section.  Now  it  must  be  obvious  that  a  mere  transfer 
of  vouchers  or  receipts  is  not  a  sufficient  compliance  with  the  re- 
quirement -of  the  law.  There  should  be  a  written  statement  of 
the  amount  of  moneys  received,  appropriated  and  expended  by  the 
commissioners  during  their  term  of  office.  This  statement  or 
account  must  "be  filed  and  recorded"  in  the  office  of  the  town 
clerk :  and  whether  one  or  all  of  the  persons  in  office  are  re- 
elected, the  rule  is  equally  applicable.  The  account  must  be  made 
out,  filed  and  recorded  in  the  same  manner  as  if  different  indi- 
viduals were  elected.  The  intention  of  the  law  is,  that  there 
shall  be  on  record  in  the  clerk's  office  a  regular  account  of  the 
pecuniary  transactions  of  the  commissioners  in  each  year :  and 
a  compliance  with  this  requirement  can  in  no  case  be  dispensed 
with. 

If  commissioners  of  common  schools,  at  the  expiration  of 
their  office,  neglect  to  make  or  render  an  account  as  aforesaid 
witliin  the  time  limited  by  law,  it  is  the  duty  of  their  successors 
to  prosecute  them  under  section  39,  page  474,  1  R.  S. 

In  the  case  mentioned  in  your  letter,  I  should  rec(Hnmend  that 
this  reply  should  be  shown  to  your  predecessors,  and  if  they 
make  out  an  account  promptly,  the  delay  should  be  overlooked. 
But  if  they  refuse,  they  should  be  prosecuted.  In  this  case  there 
must  be  a  separate  suit  against  each  commissicmer,  as  the  penal- 


190  CASES    DECIDED    BY    THE 

ty  is  separate.  You  may  sue  one  or  two  or  three  as  you  choose. 
It  would  be  most  proper  to  sue  both  of  the  two,  who  were  not 
re-elected.  As  the  other  has  removed,  you  may  not  be  able  to 
reach  him.  The  suits  must  be  brought  in  the  name  of  yourself 
and  your  associate  commissioner.  The  third  having  removed 
from  the  tow^n  has  ceased  to  be  a  commissioner. 

John  Owens,  a  trustee  in  school  district  No.  12  in 
the  town  of  Galen,  against  his  associate  trustees. 

One  trustee  cannot  open  a  school  in  pursuance  of  a  vote  of  the  district,  nor  can 
the  other  two  trustees  open  a  school  until  the  inhabitants  have  designated  the 
place,  if  there  is  no  school-house  in  the  district. 

The  facts  of  this  case  are  stated  in  the  Superintendent's  de- 
cision. 

By  John  A.  Dix,  September  24,  1834.  On  examination 
of  the  appeal  of  John  Owens,  one  of  the  trustees  of  school  dis- 
trict No.  12  in  the  town  of  Galen,  from  the  proceedings  of  his 
associate  trustees  in  relation  to  a  school  set  up  by  the  two  latter, 
it  appears  that  two  schools  have  been  kept  in  the  district,  one 
at  the  house  of  Mr.  Daniel  Burnet,  under  the  direction  of  Seth 
Brown  and  Silas  Brown,  two  of  the  trustees,  and  the  other  at 
the  house  of  Mr.  TibbiLs,  under  the  direction  of  the  appellant. 
It  is  alleged  by  the  latter  that  he  employed  a  teacher  and  set 
up  this  school  in  pursuance  of  a  vote  of  the  inhabitants  of  the 
district  called  under  a  notice  from  a  majority  of  the  trustees.  It 
is  alleged  by  the  two  other  trustees  that  this  meeting  was  not  le- 
gal, and  that  they  as  the  majority  had  full  power  to  engage  a 
teacher  and  open  a  school  wherever  they  should  think  proper. 

The  Superintendent  is  of  opinion  that  there  has  been  an  im- 
proper exercise  of  authority  on  both  sides.  In  the  first  place 
Owens  had  clearly  no  right,  without  the  consent  and  co-opera- 
tion of  one  of  the  other  trustees,  to  open  a  school  or  do  any 
other  act  in  relation  thereto  notwithstanding  the  vote  of  the  dis- 
trict; for  if  that  vote  was  given  upon  a  fair  submission  of  the 
question,  a  majority  of  the  trustees  should  have  concurred  in 
executing  it.  On  the  other  hand,  if  a  school  district  has  no 
school-house,  the  trustees  cannot  open  a  school  until  the  inhabi- 
tants have  designated  the  house,  in  which  it  shall  be  kept,  or 
given  the  trustees  a  discretion  as  to  the  selection  of  a  place  for  it. 
The  trustees  should  have  submitted  this  question  to  the  district, 
and  in  acting  without  authority  after  a  meeting  had  been  called 
pursuant  to  a  notice  signed  by  one  of  them,  they  have  made 
themselves  responsible  to  the  teacher  for  his  wages,  and  have 
contributed  to  keep  up  a  controversy,  which  should  have  been 
put  at  rest  by  a  fair  vote  of  the  inhabitants.     Under  these  circum- 


SUPERINTENDENT    OF    COMMON   SCHOOLS.  191 

stances,  both  parties  must  provide  for  the  payment  of  tiieir  tea- 
chers as  they  can ;  for  the  pubUc  money  cannot  properly  be  paid 
to  either.  If  the  two  Messrs.  Browns  have  paid  over  any  part 
of  the  pubhc  money  to  their  teacher,  they  wiU  be  personally  an- 
swerable for  it.  The  teachers  have  their  remedies  against  those 
who  have  employed  them ;  and  if  their  wages  are  not  paid,  they 
can  be  collected  by  a  suit  at  law.  It  will  be  the  duty  of  the 
trustees  to  call  a  meeting  of  the  inhabitants  on  the  receipt  of 
this  order,  for  the  purpose  of  determining  by  vote,  where  a 
school  shall  be  opened,  so  that  the  public  money  can  be  expend- 
ed before  the  first  of  January  next. 

It  is  accordingly  ordered,  that  neither  of  the  schools  which 
have  been  kept  as  aforesaid  in  district  No.  12  are  to  be  consider- 
ed as  legally  organized  district  schools,  and  that  neither  of  the 
teachers  be  paid  any  portion  of  their  wages  out  of  the  pubhc  mor 
neys  of  said  district.  ^ 

(anonymous.) 

Contracts  by  trustees  of  school  districts  for  teachers'  wages  are  binding  on  their 
successors  in  office. 

By  John  A.  Dix,  September  26, 1834.  Contracts  for  teachers' 
wages,  made  by  trustees  of  school  districts,  are  binding  on  their 
succeessors.  See  7th  vol.  Wendell's  Reports,  page  181.  Trus- 
tees not  in  office  are  not,  under  the  decision  of  the  supreme  court 
to  which  I  have  referred,  personally  answerable. 

If  a  judgment  is  recovered  against  the  trustees  in  office  the 
amount  must  be  allowed  in  their  official  accounts.  See  2  R.  S. 
sec.  108,  page  476.  The  43d  decision  of  the  Superintendent  of 
Common  Schools,  heretofore  published  with  the  school  laws,  re- 
quiring trustees  of  school  districts  to  fulfil  their  own  contracts,  is 
intended  for  their  government;  and  in  all  matters  coming  regu- 
larly before  him  the  rule  will  be  enforced,  so  far  as  it  can  be  done 
without  affecting  the  rights  of  third  persons. 

The  Trustees  of  school  district  No.  3  in  the  town  of 
Ellicottville,  ex  parte. 

The  personal  property  of  a  minister  of  the  gospel  is  exempt  from  taxation;  but 
if  the  value  of  his  real  es'ate  exceeds  ^1,500  he  may  be  taxed  for  the  excess. 

In  this  case  a  minister  of  the  gospel,  owning  a  large  farm, 
claimed  to  be  wholly  exempt  from  taxation  for  school  district 
purposes,  and  the  opinion  of  the  Superintendent  was  requested 
as  to  his  liability. 

By  John  A.  Dix,  November  3,  1834.  By  subdivision  8  of 
section  4,  1st  vol.  Revised  Statutes,  the  personal  property  of  eve- 


192  CASES    DECIDED    BY   THE      •"S'^**  ' 

ry  minister  of  the  gospel,  or  priest  of  any  denomination,  is  exempt 
from  taxation;  and  so  is  liis  real  estate,  when  occupied  by  him. 
But  the  exemption  as  to  the  latter  does  not  extend  beyond  tlie 
sum  of  $1,500.  if  your  clergyman  is  worth  more  than  that 
sum,  he  may  be  taxed  on  the  excess.  The  law  has  settled  this 
matter  so  clearly  that  no  question  can  arise  in  relation  to  it,  so 
far  as  the  extent  of  the  exemption  is  concerned. 

The  Trustees  of  school  district  No.  1  in  the  town  of 
Edwards,  ex  parte. 

Taxes  must  be  collected  in  the  mode  prescribed  by  law. 

In  this  case  a  tax  of  $200  was  voted  to  build  a  school-house, 
with  the  condition  annexed  that  it  should  be  paid  in  grain  at  the 
end  of  a  year.  The  trustees  of  the  district  entered  into  a  con- 
tract with  a  builder,  who  agreed  to  erect  the  house  and  take  his 
pay  in  the  manner  and  at  the  time  above  mentioned.  The  year 
having  expired,  and  the  trustees  being  desirous  of  fulfilling  their 
contract,  undertook  to  provide  the  amount  of  grain  stipulated  to 
be  dehvered  to  him ;  but  several  of  the  inhabitants  refused  to  fur- 
nish their  proportion.  Under  these  circumstances  the  Superin- 
tendent was  desired  to  state  whether  the  tax  could  be  collected 
in  money  or  otherwise. 

By  John  A.  Dix,  November  11,  1834,  The  proceedings  of 
the  meeting  in  your  school  district  in  October,  1833,  at  which  a 
tax  of  $200  was  voted  to  build  a  school-house,  were  not  in  con- 
formity to  the  provisions  of  the  law,  and  cannot,  therefore,  be  en- 
forced. When  a  tax  is  voted  for  school  district  purposes,  the  law 
indicates  the  mode  in  which  it  shall  be  assessed  and  collected ; 
and  no  vote  of  the  inhabitants,  which  contravenes  these  provi- 
sions, is  of  binding  force.  A  vote  to  pay  a  tax  in  grain  at  the 
end  of  a  yeai-  is  wholly  unauthorized  and  void.  The  district  is 
fairly  indebted  to  the  builder  for  the  amount  of  the  contract;  and 
if  the  inhabitants  do  not  pay  him  voluntarily,  in  the  manner 
agreed  on,  a  tax  should  be  voted,  at  a  special  meeting  to  be  call- 
ed for  the  purpose.  This  matter  may  be  easily  arranged  among 
yourselves,  if  you  are  so  disposed;  but  if  you  cannot  agree,  and  a 
5j  recourse  to  legal  measures,  on  the  part  of  the  builder,  becomes  ne- 
cessary, he  must  recover  the  amount  justly  due  to  him. 


SUPERINTENDENT   OF    COMMON   SCHOOLS.  193 

The  Trustees  of  school  district  No.  20  in  the  town 
of  Boonville,  ex  parte. 

The  ownership  of  the  soil  carries  with  it  a  right  of  property  in  permanent  erec- 
tions on  it:  but  if  a  school-house  is  built  by  subscription,  on  a  site  purchased 
by  a  district,  a  tax  may  be  voted  to  purchase  the  house. 

In  this  case  a  school  house  was  commenced  by  subscription, 
on  a  lot  to  which  a  title  was  expected  to  be  given  by  the  owner. 
In  consequence  of  some  controversy  among  the  parties  the  house 
w£is  not  finished;  but  at  a  subsequent  period  a  tax  of  $70  was 
voted  by  the  district  to  purchase  the  site  and  finish  the  house. 
The  amount  voted  was  raised  and  expended,  and  the  lot  on 
which  the  school-house  was  built  was  conveyed  to  the  district. 
The  question  submitted  to  the  Superintendent  was  whether  a  tax 
could  be  voted  to  reimburse  those  who  had  partially  constructed 
the  house,  and  whether  such  a  measure  would  be  equitable. 

By  John  A.  Dix,  November  10,  1834.  The  rule  of  law  is 
that  the  right  of  property  in  all  permanent  erections  upon  land 
resides  in  the  owner  of  the  soil ;  and,  therefore,  the  district  having 
purchased  the  ground  on  which  the  school-house  stands  becomes 
the  legal  owner  of  the  latter.  Equitably,  however,  each  of  the 
parties  who  have  contributed  to  its  construction  have  an  inte- 
rest in  it  commensurate  with  their  respective  contributions.  It 
seems  no  more  than  just,  if  the  district  intends  to  appropriate  the 
house  to  its  own  use,  that  it  should  pay  a  fair  price  for  it.  The 
inhabitants  have  a  perfect  right  to  vote  a  tax  to  purchase  it ;  and 
the  sum  raised  should  be  paid  to  those  who  have  built  it.  The 
tax  should,  of  course,  be  levied  on  all  the  inhabitants,  without  re- 
gard to  the  fact  that  some  had  subscribed  and  others  had  not; 
and  as  the  amount  collected  would  go  to  those  who  had  paid 
their  money  for  its  construction  they  would  in  eflfect  be  reimbursed, 
and  would,  therefore,  only  contribute,  to  the  extent  of  their  respec- 
tive portions  of  the  tax,  to  the  purchase  of  the  house.  Thus 
would  equal  justice  be  done  to  all,  and  the  district  would  pur- 
chEise  and  pay  for  the  house,  as  it  ought  to  do. 

In  some  cases  school  districts  have  been  formed  with  the  un- 
derstanding that  a  sum  is  to  be  raised  by  subscription  to  pay  for  a 
school-house,  and  that  the  inhabitants  are  not  to  be  taxed  for  the 
purpose.  Such  arrangements  are  almost  always  objectionable 
and  rarely  fail,  soon  or  late,  to  produce  diss^ntion.  But  if  there 
was  such  an  understanding  with  you  it  ought  to  be  executed 
in  good  faith;  and  the  district  should  be  deemed  the  owner  of 
the  school-house.  But  this  should  be  the  fruit  of  an  amicable 
arrangement,  as  it  is  one  of  those  cases  in  which  the  provisions 
of  the  law  have  not  been  followed  in  the  first  instance,  and  ia 

13 


194  ••**•'•         CASES    DECIDED    BY   THE 

which  the  parties  have  acted  upon  a  mere  private  understanding 
among  themselves. 

If  no  understanding  whatever  of  the  nature  referred  to  existed 
the  district  should  pay  for  the  house.  In  this  case  a  special 
meeting  of  the  inhabitants,  for  the  purpose  of  laying  a  tax,  may 
be  called  by  the  trustees. 

The  Trustees  of  school  district  No. in  the  town 

of  Antwerp,  ex  parte. 

Where  improvements  in  real  estate  have  been  made  and  completed  since  the 
last  assessment  roll  of  the  town  was  made  out,  the  roll  is  not  to  be  followed, 
so  far  as  such  real  estate  is  concerned. 

In  this  case  a  tax  was  voted  to  build  a  school-house,  and  it 
appeared  that  improvements  in  several  instances  had  been  made 
in  real  estate  by  new  erections  between  the  time  of  completing 
the  last  assessment  roll  of  the  town  and  the  time  of  voting  the 
tax.  One  of  the  inhabitants  had  built  a  barn,  which  was  com- 
pleted ;  another  had  commenced  a  tannery,  and  a  third  a  dwel- 
ling-house, which,  however,  were  unfinished.  The  question  pre- 
sented was.  whether  the  last  assessment  roll  of  the  town  should 
be  followed  in  either  or  all  these  cases. 

By  John  A.  Dix,  December  8,  1834.  Where  improvements 
have  been  made  in  real  estate  in  school  districts  since  the  com- 
pletion of  the  last  assessment  roll  of  the  town,  it  is  one  of  the  ca- 
ses in  which  the  value  of  the  property  cannot  be  ascertained  by 
a  reference  to  the  assessment  roll.  If  the  property  remains  in 
the  same  condition,  the  tnistees  cannot  vary  the  assessment  be- 
cause they  may  think  it  too  low.  But  if  a  new  erection  is  made, 
and  the  property  actually  enhanced  in  value  by  an  expenditure 
of  money  in  such  a  manner  that  the  improvement  is  capable  of  a 
distinct  valuation,  the  trustees  may  give  notice  and  assess  the 
property  at  its  increased  value.  But  this  should  not  be  done 
where  the  improvement  is  not  complete.  The  case  of  the  bam 
I  consider  within  the  rule  above  laid  down,  but  not  so  with  the 
other  improvements,  which  are  incomplete.  The  reason  of  the 
distinction  is  obvious,  as  in  one  case  the  valuation  of  the  subject 
matter  may  be  reduced  to  certainty,  and  in  the  other  it  must  de- 
rive its  principal  value  from  its  completion,  which  is  contingent 
and  future. 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  195 

The  Trustees  of  school  district  No. in  the  town 

of  Otto,  ex  parte. 

A  tax  may  be  voted  for  two  authorized  objects,  without  specifying  the  amount 

to  be  niise<l  for  each. 
If  a  site  is  chosen  for  a  school-house  and  the  owner  refuses  to  give  a  conveyance, 

a  new  one  may  be  chosen  by  a  majority  of  votes. 

A  new  school  district  was  organized,  and  a  site  for  the  school- 
house  chosen.  A  tax  of  $250  was  then  voted  to  build  the  school- 
house,  pay  for  the  site,  and  to  furnish  the  school-house  with  a 
broom,  a  water  pail  and  cup,  a  stove  and  a  fire  shovel,  naming 
each  object  of  expenditure  in  the  resolution,  but  not  naming  a 
specific  sum  for  each.  On  application  to  the  owner  of  the  land 
on  which  the  site  for  the  school-house  had  been  fixed,  he  refused 
absolutely  to  make  a  conveyance  or  to  allow  the  school-house  to 
be  built  on  the  proposed  site.  The  questions  submitted  were, 
whether  the  tax  as  voted  was  legal,  and  whether  a  new  site 
could  be  fixed  by  a  majority  of  votes. 

By  John  A.  Dix,  December  8,  1834.  I  consider  ail  your 
proceedings  legal.  The  articles  voted  to  be  purchased  for  your 
school-house  were  all  appendages  within  the  meaning  of  the  law, 
and  it  was  not  necessary  to  vote  a  specific  sum  for  each  object. 
It  was  sufficient  to  vote  a  specific  sum  and  enumerate  the  seve- 
ral objects  to  which  it  was  to  be  applied,  provided  the  objects 
were  all  such  as  are  enumerated  in  the  section  of  the  law  which 
authorizes  taxes  to  be  raised  in  school  districts. 

The  change  of  site  was  also  proper.  The  owner  of  the  first 
site  chosen  having  refused  to  give  a  conveyance,  it  was  a  failure 
to  procure  a  title,  which  placed  the  district  in  precisely  the  same 
condition  as  though  it  had  never  chosen  a  site.  A  majority  of 
votes  was  all  that  was  necessary  to  change  the  position  of  the 
school-house. 

(anonymous,) 

A  tax  may  be  voted  to  repair  a  school-house,  though  the  district  has  no  title  to 

the  site. 

By  John  A.  Dix,  December  9,  1834.  A  district  may  vote 
a  tax  to  repair  the  school-house,  even  though  it  has  no  title  to 
the  site ;  but  I  consider  it  unwise  to  expend  money  on  a  school- 
house  so  situated,  as  the  owner  of  the  land  may  re-enter  and  the 
district  may  sustain  loss  as  well  as  inconvenience.  If,  however, 
the  inhabitants  choose  to  repair  the  house  under  such  circum- 
stances, they  have  an  undoubted  right  to  do  so ;  and  a  tax  vot- 
ed for  the  purpose,  in  the  usual  manner,  would  jje  legal. 


196  CASES    DECIDED   BY   THE 

The  Commissioners  of  Common  Schools  of  the  town 
of  Vienna,  ex  parte. 

Persons  annexed  to  a  new  district  with  their  consent,  may  be  taxed  for  a  school- 
house,  though  they  may  have  paid  a  tax  for  the  purpose  Within  four  years. 

When  persons  are  annexed  to  a  new  district,  without  their  consent,  and  are  not 
liable  to  be  taxed  in  it  for  a  school-house,  file  portion  of  the  value  of  the  school- 
house  in  the  district  from  which  they  are  taken  allowed  to  the  new  district  on 
account  of  the  taxable  property  of  such  persons,  goes  to  the  benefit  of  all  the 
inhabitants. 

The  facts  of  this  case  are  fully  stated  in  the  Superintendent's 
opinion. 

By  John  A.  Dix,  December  9,  1834.  Six  individuals  are 
taken  from  an  old  district  to  form  a  new  one,  all  of  whom  have 
contributed  to  the  erection  of  a  school-house  within  four  years. 
Four  consented  to  be  set  off  and  two  did  not  consent.  The  com- 
missioners of  common  schools  in  forming  a  new  district,  adjudge 
forty  dollars  to  be  paid  to  it  from  the  old  district,  on  account  of 
the  six  persons  thus  set  off,  the  said  sum  being  the  proper  pro- 
portion of  the  value  of  the  property  of  the  old  district,  according 
to  the  taxable  property  of  the  six  individuals  set  off.  The  four 
persons  who  consented  to  be  set  off  are  liable  to  be  taxed  for  a 
school-house  in  the  new  district.  The  two  who  were  set  off 
without  their  consent,  having  paid  a  tax  for  building  a  school- 
house  in  another  district  within  four  years,  cannot  be  taxed. 

The  question  submitted  is,  whether  the  four  persons  who  are 
liable  to  be  taxed  are  entitled  to  have  the  whole  sum  of  forty  dol- 
lars applied  to  the  reduction  of  their  taxes,  (if  their  taxes  for 
building  a  school-house  in  the  new  district  amount  to  so  much,) 
or  whether  only  so  much  of  the  forty  dollars  as  was  apportioned 
to  the  new  district  upon  the  basis  of  the  taxable  property  of  the 
four  persons  referred  to  is  to  be  applied  to  the  reduction  of  theii^ 
taxes  for  a  school-house. 

The  language  of  the  law  may  seem  to  favor  the  former  con- 
.struction,  but  the  equity  is  plain;  and  without  doing  violence  to 
the  terms  of  the  several  sections  applicable  to  the  case,  I  have 
no  hesitation  in  giving  to  it  a  construction  which  shall  be  consis- 
tent with  equity.  It  was  certainly  not  the  intention  of  the  law, 
that  any  individual  set  to  a  new  district  should  be  benefitted  by 
the  amount  of  the  property  of  the  old  district  awarded  to  the  new 
Ijeyond  his  own  pro|)ortion  of  such  property.  Each  person,  who 
is  set  from  an  old  district  having  a  school-house  or  other  property 
to  a  new  district,  may  be  said  to  carry  into  the  latter  his  propor- 
tion of  the  value  of  such  school-house  or  propert}'^,  and  he  is  to 
have  the  benefit  of  it  to  the  amount  of  his  tax  for  a  school-house  in 
the  new  district.  But  he  cannot  have  the  exclusive  benefit  of  that 
portion  of  the  value  of  the  school-house  or  property  in  the  old  di&- 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  197 

trict,  which  is  awarded  to  the  new  district  as  the  proportion  ot" 
other  persons.  If  the  latter  are  not,  from  pecuhar  circumstances, 
liable  to  be  taxed  for  a  school-house,  their  proportion  goes  to  the 
reduction  of  the  whole  tax  for  a  school-house,  and  enures  to  the 
benefit  of  all  the  inhabitants  of  the  new  district.  In  this  bene- 
fit the  individual  first  referred  to  participates  equally  with  all 
others,  but  no  farther.  If  he  were  to  be  allowed,  by  way  of  re- 
ducing his  tax,  any  thing  more  than  was  received  from  the  old 
district  on  his  account,  he  would  acquire  a  benefit  to  which  he 
has  no  more  claim  than  any  other  inhabitant  of  the  district,  and 
have  an  advantage  over  others  which  could  not  be  recognizetl 
without  a  subversion  of  that  plain  rule  of  equal  justice,  which 
it  is  the  intention  of  the  law  to  maintain  inviolate. 
<;  I  therefore,  decide  that  the  four  persons  who  consented  to  be  an- 
nexed to  the  new  district,  are  to  have  so  much  of  the  forty  dollars 
applied  to  the  reduction  of  their  taxes  respectively,  as  was  award- 
ed to  the  new  district  upon  the  taxable  property  of  each :  and 
that  so  much  of  the  forty  dollars  as  was  awarded  to  the  new  dis- 
trict on  account  of  the  two  persons,  who  did  not  consent  to  be 
set  off,  is  to  be  applied  to  the  reduction  of  the  whole  tax  voted 
for  a  school-house,  so  that  all  who  are  to  pay  the  tax  may  have 
the  benefit  of  it.* 

The  Inhabitants  of  joint  school  district  No.  13  in  the 
towns  of  Rome  and  Lee,  against  the  Commission- 
ers of  Common  Schools  of  said  towns. 

If  a  school  district  has  been  recognized  as  legal  for  a  length  of  time,  regularity 
in  its  organization  will  be  presumed  in  the  absence  of  the  proper  record,  and 

^.the  commissioners  of  common  schools  cannot  form  the  district  anew  and  order 
an  election  of  officers  under  such  circumstances. 

^he  facts  of  this  case  are  stated  in  the  Superintendent's  o^- 
der. 

By  John  A.  Dix,  December  13,  1834.  On  the  first  day  of 
October  last  the  annual  meeting  was  held  in  joint  school  district 
No.  13,  in  the  towns  of  Rome  and  Lee,  and  officers  were  chosen 
for  the  ensuing  year.  To  the  regularity  of  the  proceedings,  ex- 
ceptions were  taken,  and  an  appeal  was  presented  to  the  com- 
missioners of  common  schools  of  the  two  towns,  who  met  and 
decided  that  they  had  no  power  to  entertain  the  appeal.  On  ex- 
amination of  the  records  of  the  towns,  it  appeared  that  district 
No.  13  was  not  recorded,  with  a  proper  designation  of  bounda- 
ries, in  either;  whereupon  the  commissioners  proceeded  on  the 

•  See  the  case  of  the  trustees  of  school  district  No.  13  in  the  town  of  Cas- 
tile, page  64. 


198  CASES    DECIDED    BY   THE 

first  day  of  November^  (that  day  having  been  previously  appoint- 
ed for  the  purpose,)  to  form  a  new  district  by  making  additions 
to  tlie  district  in  question,  and  by  making  a  specification  of  its 
boundaries.  The  district  was  then  put  on  record  in  both  towns, 
and  a  meeting  was  called  in  pursuance  of  the  provisions  of  sec- 
tion 55,  page  477,  1  R.  S.  to  choose  district  officers.  The  meet- 
ing was  held  on  the  12th  of  November,  and  district  officer^  were 
chosen.  To  this  proceeding  exception  is  taken  by  the  officers 
elected  at  the  annual  meeting  on  the  Ist  of  October. 

By  an  examination  of  the  reports  made  by  the  commissioners 
of  common  schools  of  the  towns  of  Rome  and  Lee,  in  the  office 
of  the  Superintendent,  it  appears  that  joint  district  No.  13  has 
been  regularly  returned  by  the  commissioners  of  those  towns  since 
the  year  1822  as  an  organized  district,  lying  partly  in  both  towns, 
and  that  the  public  money  has  been  apportioned  to  it  according 
to  law.  A  recognition  of  the  district  for  so  long  a  period,  cannot 
with  propriety  be  disregarded  in  consequence  of  a  failure  on  the 
part  of  the  proper  officers  to  have  it  recorded.  It  was  the  duty 
of  the  commissioners,  on  being  apprized  of  the  fact,  to  meet  to- 
gether and  declare  the  boundaries  with  a  view  to  have  them 
made  a  matter  of  record :  but  it  cannot  be  admitted  for  a  mo- 
ment, that  the  omission  of  the  proper  officers  to  comply  with 
provisions  of  law,  which  are  merely  directory,  is  to  vacate  pro- 
ceedings regularly  conducted  by  the  competent  authority.  It  is 
true  it  does  not  appear,  by  the  records,  that  the- district  was  ever 
regularly  organized  in  the  manner  prescribed  by  law  ;  but  not- 
withstanding the  statement  given  by  the  commissioners  with  re- 
gard to  certain  proceedings  in  both  towns  in  setting  off  a  part  of 
each  to  the  other,  the  Superintendent  cannot  now  permit  the 
original  formation  of  the  district  to  be  enquired  into  for  the  pur 
pose  of  invalidating  any  thing  that  has  been  done  within  it 
since  its  organization.  After  the  lapse  of  twelve  years,  during 
which  the  district  has  been  returned  by  the  commissioners  of 
l)oth  towns  to  the  Superintendent  of  common  schools,  and  has 
compfied  with  the  directions  of  the  statute  so  as  to  become  en- 
titled to  the  public  money,  regularity  in  its  organization  will  be 
presumed;  and  the  commissioners  will  be  so  far  bound  by  the  re- 
ports of  their  predecessors  that  they  will  not  be  allowed  to  impeach 
the  accuracy  of  those  reports.  It  has  been  repeatedly  decided 
that  a  district,  which  has  been  for  a  series  of  years  recognized 
as  valid,  is  to  be  regarded  as  such,  although  no  record  of  it  can 
be  found ;  and  in  such  cases  the  commissioners  have  been  direct- 
ed, whenever  the  interposition  of  the  Superintendent  of  Com- 
mon Schools  has  been  required,  to  meet  and  declare  the  boun- 
daries of  the  district,  and  put  them  on  record.  In  this  case  the 
commissioners  have  overstepped  the  limits  of  their  authority,  by 


SUPEKINTENDENT    OF   COMMON   SCHOOLS.  199 

treating  the  district  as  null,  and  ordering  an  election  after  form- 
ing it  anew.  They  had  power  to  annul  the  district ;  but  with- 
out doing  so  in  a  formal  manner,  it  could  not  be  reorganized  and 
treated  as  a  new  district.  They  could  not  give  the  notice  pro- 
vided for  in  section  55  before  referred  to,  because  it  was  not  a 
new  district ;  nor  could  they  issue  a  notice  under  the  provisions 
of  section  57,  (same  page)  because  neither  of  the  contingencies, 
on  which  the  right  to  issue  inch  a  notice  is  dependent,  had  oc- 
curred. It  is  alleged  that  several  of  the  appellants,  who  were 
the  officers  chosen  on  the  1st  of  October,  were  present  and  ac- 
quiesced in  the  proceedings  of  the  commissioners.  Admitting 
the  fact,  the  difficulty  still  remains.  There  was  a  want  of  juris- 
diction, so  far  as  the  order  for  a  new  election  is  concerned,  and 
their  consent  could  not  give  jurisdiction.  '  They  might  have  re- 
signed, but  could  not  by  their  consent  give  validity  to  any  act  on 
the  part  of  the  commissioners,  not  authorized  by  express  provi- 
sions of  law,  which  would  abridge  the  period  of  their  election 
to  office.  Notwithstanding  the  error  of  the  commissioners,  the 
Superintendent  is  well  satisfied  that  they  intended  to  act  for  the 
best  good  of  the  district,  and  without  any  doubt  as  to  the  extent 
of  their  powers. 

It  is  hereby  ordered,  that  so  much  of  the  proceedings  of  the 
commissioners  aforesaid  on  the  first  of  November  last,  as  relates 
to  the  boundaries  of  district  No.  13  in  Rome  and  Lee,  be  con- 
firmed, and  that  said  boundaries  be  continued  as  established  by 
them  on  that  day.  And  it  is  hereby  declared,  that  the  proceed- 
ings of  the  meeting  in  said  district  on  the  12th  of  November, 
held  in  pursuance  of  the  order  of  the  commissioners,  are  null 
and  void ;  and  that  the  persons  chosen  on  the  1st  of  October  last 
are  and  will  continue  to  be  the  officers  of  said  district  until  the 
next  annual  meeting,  or  until  vacancies  occur. 

(anonymous.) 

Certificates  of  qualification  to  teach  a  particular  school  cannot  be  given. 

By  John  A.  Dix,  December  26, 1834.  Inspectors  of  common 
schools  have  no  right,  in  giving  a  teacher  a  certificate  of  qualifi- 
cation, to  be  governed  by  a  consideration  of  the  particular  circum- 
stances for  which  it  is  wanted.  The  certificate  is  good  for  one  year 
to  teach  any  school  in  the  town,  unless  it  is  previously  revoked ; 
and  it  would  certainly  be  not  only  a  very  inconvenient,  but  a 
very  erroneous,  practice  to  give  a  certificate  to  a  teacher  to  enable 
him  to  receive  the  public  money  for  teaching  one  school  and  to 
revoke  it  if  he  undertook  to  teach  another.  The  law  makes  no 
distinction,  and  the  inspectors  should  not.  They  must  be  "  sa- 
tisfied" as  to  "the  qualifications  of  the  candidate  in  respect  to 


200  ^i^^-       CASES    DECIDED   BY    THE 

moral  character,  learning^  and  ability,"  not  to  teach  SLpdttKtA&r 

school,  but   "  for  teaching  common  schools "  in  their  town. 

The  Trustees  of  school  district  No.  6  m  the  town  of 
*  ";  Rensselaerville,  ex  parte. 

If  a  teacher  is  examined  and  the  inspectors  are  satisfied,  but  neglect  to  give  a 
certificate  at  the  lime,  it  ma;  be  given  at  a  subsequent  time  and  take  effect 
from  the  date  of  the  examination. 

In  this  case  the  commissioners  of  common  schools  examined 
a  female  teacher  and  expressed  their  satisfaction  with  her  quaU- 
fications,  but  neglected  to  give  her  a  certificate  at  the  time.  On 
application  to  them  at  a  subsequent  period  of  her  term,  the  certi- 
ficate was  given  to  hep.  The  question  presented  was,  whether 
she  was  to  be  deemed  a  qualified  teacher  from  the  time  of  the 
examination  or  from  the  date  of  her  certificate. 

By  John  A.  Dix,  January  6,  1835.  The  teacher  in  your 
district  should  have  received  a  certificate  of  qualification  at  the 
time  she  w£is  examined ;  but  if  the  certificate  which  she  received 
was  given  upon  the  strength  of  the  examination  in  the  spring,  she 
ought  to  be  considered  a  qualified  teacher  from  the  date  of  such 
examination.  The  omission  of  the  inspectors  to  give  her  a  cer- 
tificate at  the  time,  if  they  were  satisfied  with  her  quahfications. 
should  not  be  allowed  to  operate  to  her  prejudice. 

(anonymous.) 

The  ate  of  a  school-house,  if  actually  owned  by  the  district,  is  a  part  <^  its  pro- 
perty, subject  to  appraisement  when  a  new  district  is  formed. 

By  John  A.  Dix,  January  6,  1835.  The  value  of  the  lot 
an  which  a  school-house  stands,  or,  as  it  is  usually  termed,  the 
site  of  the  school-house,  is  to  be  considered  as  a  part  of  the  pro- 
perty of  the  district,  subject  to  appraisement  under  section  67  of 
the  act  relating  to  common  schools,  if  the  district  is  divided  and  a 
new  one  formed  from  part  of  it.  It  is  to  be  understood,  however, 
that  the  site  must  be  the  absolute  property  of  the  district,  and  not, 
as  often  happens,  occupied  at  sufferance,  or  on  condition  of  being 
used  as  a  site  for  a  school-house. 

(anonymous.) 

The  assessment  roli  of  the  town  is  not  complete  until  it  is  signed  and  certified. 

By  John  A.  Dix,  January  12,  1835.  The  assessment  roll 
of  the  town  is  not  complete,  and  cannot,  therefore,  be  considered 
as  the  "last  assessment  roll  of  the  town,"  until  after  it  is  signed 


SUPERINTENDENT    OF    COMMON   SCHOOLS.  201 

and  certified  as  required  by  section  26,  title  2,  of  the  act  for  the 
assessment  and  collection  of  taxes.* 

The  President  and  Directors  of  the  Bank  of  Orleans, 
against  the  trustees  of  school  district  No.  1  in  the 
town  of  Barre. 

There  can  be  no  partnership  in  the  erection  of  a  district  school-house. 

The  facts  of  this  case  are  stated  in  the  Superintendent's  order. 

By  John  A.  Dix,  January  12,  1835.  The  Superintendent 
of  common  schools  has  examined  the  statement  of  facts  agreed 
on  by  the  trustees  of  school  district  No.  1  in  the  town  of  Barre, 
and  the  president  and  directors  of  the  Bank  of  Orleans,  in  rela- 
tion to  the  assessment  of  a  tax  on  the  property  of  said  district  for 
the  purpose  of  erecting  a  school-house. 

The  proposed  school-house  is  intended  to  be  part  of  a  building 
to  be  used  as  an  academy  as  well  as  a  school-house,  and  the  sum 
of  $2,000  is  intended  to  be  raised  by  subscription  to  complete  it. 

Much  as  the  Superintendent  is  disposed  to  confirm  the  pro- 
ceedings of  the  inhabitants  of  the  district,  by  whom  they  have 
been  adopted  with  great  unanimity,  he  is  constrained  to  set  them 
aside  by  a  rule,  which  cannot,  in  his  opinion,  be  safely  departed 
from  in  any  case,  without  authority  from  the  legislature.  By  a 
decision  of  the  Superintendent  heretofore  published  with  the 
school  laws,  it  is  settled  that  there  can  be  no  partnership  in  the 
erection  of  a  school-house  which  will  prevent  the  district  from 
controlling  it  entirely  for  the  objects  of  the  district  school.  This 
principle  he  feels  bound  to  enforce  in  all  cases  which  come  before 
him.  To  sanction  a  departure  from  it  would  establish  a  prece- 
dent which  might  lead  to  great  embarrassment  and  possibly  to 
abuse.  If  in  any  case  the  interest  of  a  district  should  require 
such  an  arrangement  as  is  contemplated  by  the  inhabitants  of 
this  district,  apphcation  must  be  made  to  the  legislature  for  the 
proper  authority. 

The  Superintendent  deems  it  proper  to  add,  that  he  should 
have  confirmed  the  tax  but  for  the  single  fact  that  the  school- 
house  is  proposed  to  be  united  with  an  academy.  The  wealth 
of  the  district  justifies  the  amount  of  the  proposed  expenditure ; 
and  it  is  no  objection,  in  his  mind,  that  a  large  proportion  of  the 
tax  falls  on  a  moneyed  institution,  which  not  only  has  the  ability 
but  the  directors  of  which  express  a  willingness  tQ  contribute  to 
the  erection  of  a  school-house  for  the  district. 

*  For  the  Uabilities  of  trustees  in  deviating  from  the  last  assessment  roll  of  the 
town  in  assessing  a  tax,  see  the  decision  of  the  Superintendent  of  December 
1,  1835,  in  the  case  of  the  trustees  of  school  district  No.  5  in  the  town  of  Catlin . 


202  CASES    DECIDED    BY   THE 

It  is  hereby  ordered,  that  so  much  of  the  proceedings  of  the 
special  meeting  in  school  district  No.  1,  on  the  23d  December 
last,  as  authorizes  a  tax  of  fifteen  hundred  dollars  to  be  levied, 
with  a  view,  as  is  admitted,  to  be  applied  to  the  erection  of  a 
building  Jor  a  school-house  and  academy,  in  pursuance  of  a  re- 
solution passed  at  a  meeting  of*  said  district  on  the  7th  October 
last,  be  and  it  is  hereby  set  aside.  This  decision  is  not  intended 
to  affect  the  right  of  the  inhabitants  of  said  district,  by  virtue  of 
the  certificate  of  the  commissioners  of  common  schools  heretofore 
given,  to  meet  again  and  vote  the  same  amount  for  the  purpose 
of  erecting  a  building  to  be  used  solely  as  a  district  school-house. 

The  Trustees  and  inhabitants  of  school  district  No. 
20  in  the  town  of  Bethlehem,  ex  parte. 

The  annual  election  in  a  school  district  having  been  neglected  for  two  yean,  the 
Superintendent  will  order  one  to  be  held. 

,  This  was  an  application  to  the  Superintendent  by  the  inha- 
bitants of  school  district  No.  20  in  the  town  of  Bethlehem,  to  or- 
der an  election  of  district  officers,  the  annual  meeting  having 
been  omitted  for  two  successive  years.  In  this  appUcation  the 
trustees  last  elected  united. 

By  John  A.  Dix,  January  14,  1835.  The  annual  meeting 
for  the  election  of  officers  in  school  district  No.  20  in  the  town  of 
Bethlehem  having  been  neglected  for  two  successive  years,  and 
application  having  been  made  to  the  Superintendent  of  Common 
Schools  for  his  direction:  It  is  hereby  ordered,  that  the  trustees 
now  serving,  viz.  G.  H.  Birch,  John  P.  Brayton  and  Bretton 
Udell  do  proceed  to  call,  at  the  earliest  practicable  day,  a  meet- 
ing of  the  taxable  inhabitants  of  said  district  No.  20,  at  some 
convenient  place  therein,  for  the  purpose  of  electing  officers  for 
said  district  for  the  ensuing  year,  and  for  the  transaction  of  such 
other  business  as  the  inhabitants,  when  so  assembled,  may  deem 
necessary.  The  notice  will  set  forth  the  objects  of  the  meeting, 
and  state  that  it  is  called  by  authority  of  the  Superintendent  of 
Common  Schools ;  and  it  will  be  served  in  the  manner  requir- 
ed by  law  when  special  meetings  are  called  by  the  trustees. 
After  the  election  of  district  officers  the  time  and  place  for  hid- 
ing the  next  annual  meeting  will  be  fixed  by  vote  of  the  inha- 
bitants assembled  in  pursuance  of  the  notice  so  to  be  given. 


SUPERINTENDENT    OF   COMMON    SCHOOLS.  203 

The  Trustees  of  school  district  No.  1  in  the  town  of 
Castile,  ex  parte. 

No  more  money  can  be  expended  on  a  school-house  than  is  necessary  for  com- 
mon  school  purposes. 

The  school-house  in  district  No.  1  in  the  town  of  Castile 
having  been  consumed  by  fire,  it  was  proposed  by  some  of  the 
inhabitants  to  build  a  house  large  enough  for  the  purposes  of  the 
dbtrict  school,  with  one  or  two  additional  rooms  to  be  rented  for 
select  schools  or  such  other  purpose  as  might  be  acceptable  to  the 
district.  The  question  presented  was  whether  a  tax  to  construct 
such  a  building  could  be  legally  voted. 

By  John  A.  Dix,  January  15,  1835.  The  inhabitants  of 
school  districts  have  no  right  to  lay  a  tax  for  any  amount  to  be 
expended  on  a  school-house,  excepting  what  is  absolutely  neces- 
sary for  common  school  purposes.  They  may  have  a  house 
with  two  or  more  rooms,  if  such  a  one  is  necessary,  for  the  con- 
venience of  the  district.  But  the  idea  of  having  a  room  to  rent, 
even  for  a  select  school,  is  wholly  inadmissible. 

Edmund  Baldwin,  Jr.  and  others,  against  the  inha- 
bitants of  school  district  No.  11  in  the  town  of 
Lawrence. 

If  a  school  district  is  broken  up,  the  persons  belonging  to  it  are  liable  to  be  taxed 
for  a  school-house  in  the  districts  to  which  they  are  annexed,  though  they 
may  have  paid  a  tax  for  the  same  purpose  within  four  years. 

Notices  for  special  meetings  must  be  personally  served. 

The  principal  facts  of  this  case  are  stated  in  the  Superinten- 
dent's order.  The  only  material  point  not  fully  set  forth  in  his 
order  is  the  ground  on  which  the  appellants  relied  in  claiming 
an  exemption  from  a  tax  for  building  a  school-house  in  district 
No.  11  after  the  dissolution  of  the  district  to  which  they  belong- 
ed, and  their  transfer  to  the  former.  This  point  was  in  sub- 
stance that  they  were  set  off  from  the  other  district  without  their 
consent,  and  that  having  paid  a  tax  in  it  for  a  school-house  with- 
in four  years,  they  were  not  liable  to  be  taxed  for  the  same  pur- 
pose in  district  No.  11. 

By  John  A.  Dix,  January  17,  1835.  This  is  an  appeal  by 
Edmund  Baldwin,  junior,  and  others,  from  the  proceedings  of  a 
district  meeting  held  on  the  tenth  day  of  December  last,  in  school 
district  No.  11  in  the  town  of  Lawrence,  at  which  meeting  a 
tax  of  $318 .  50  was  laid  for  building  a  school-house,  &c. ;  and 
also  from  the  proceedings  of  the  trustees  of  said  district,  in  as- 
sessing the  appellants  for  their  portion  of  said  tax. 

The  principal  grounds  on  which  exception  is  taken  to  the  pro- 
ceedings before  mentioned  are  the  following: 


204  CASES    DECIDED   BY    THE 

1st.  That  the  appellants  have,  within  four  years,  paid  a  tax 
towards  building  a  school-house  in  another  district,  from  which 
they  were  set  off  without  their  consent;  and, 

2d.  That  the  meeting  on  the  10th  of  Dec.  ult.  was  not  call- 
ed in  pursuance  of  the  notice  required  by  law. 

The  lEist  exception  is  well  taken,  and  the  proceedings  must  be 
set  Eiside  on  this  ground.  In  calling  meetings  for  special  objects 
the  trustees  of  school  districts  should  pursue  the  directions  of  the 
statute  strictly.  This  observation  applies  most  emphatically 
to  cjises  in  which  the  object  of  the  meeting  is  to  impose  a  tax. 
The  notice  should  properly  specify  the  object  of  the  meeting;  but 
it  is  indispensable  that  it  should  be  personally  served,  as  is  re- 
quired by  sub.  2,  of  sec.  74,  and  by  sec.  56  of  the  act  relating  to 
common  schools.  The  notice  for  the  meeting  on  the  tenth  Dec. 
was  in  proper  forai,  as  appears  by  the  affidavit  of  the  clerk,  but 
instead  of  being  served  on  each  taxable  inhabitant,  it  was  mere- 
ly posted  up  as  in  the  case  of  an  annual  meeting  or  a  meeting  ad- 
journed for  a  longer  time  than  one  month.  The  notice  was  not 
sufficient,  no  attempt  having  been  made  to  give  it  in  the  man- 
ner required  bylaw;  and  a  new  meeting  must  be  called,  and 
the  tax  voted  again  before  it  can  be  collected. 

The  case  being  thus  disposed  of,  it  is  unnecessary,  for  the  pur- 
poses of  this  decision,  to  consider  the  first  ground  of  objection. 
But  to  avoid  future  embaiTassment  it  is  proper  to  say  that  the 
Superintendent  deems  it  wholly  untenable,  if,  as  is  alleged,  the 
appellants  became  inhabitants  of  district  No.  11  by  virtue  of  the 
dissolution  of  district  No.  8  under  an  order  of  the  commissioners 
of  common  schools.  The  provision  of  law  which  exempts  from 
tlie  payment  of  a  tax  for  building  a  school-house  individuals 
who  have,  within  four  years,  paid  a  tax  for  the  same  purpose  in 
another  district,  from  which  they  have  been  set  off  without  their 
consent,  is  not  applicable  to  cases  in  which  a  district  is  wholly 
broken  up,  and  the  inhabitants  who  composed  it  are  arrang^ 
to  others.  The  intention  of  that  provision  was  to  provide  an  ex- 
emption where  a  person  is  taken  from  a  district  which  continues 
in  existence  after  he  is  annexed  to  another,  and  not  where  he  is, 
from  the  necessity  of  the  case,  attached  to  another,  because  the 
district  to  which  he  belonged  is  dissolved.  The  appellants  are, 
therefore,  hable  to  he  taxed  for  building  a  school-house  in  district 
No.  11,  iuEismuch  as  they  became  inhabitants  of  that  district  by 
virtue  of  the  dissolution  of  district  No.  8. 

It  is  hereby  ordered,. that  the  proceedings  of  the  meeting  held 
on  the  tenth  of  December  last,  in  district  No.  11,  be,  and  the/ 
are  hereby  annulled.  ^ 


superintendent  of  common  schools.  205 

(anonymous.) 

If  a  teacher  is  engaged  at  a  given  sum  per  month,  and  the  public  money  is  paid 

to  him,  it  is  to  be  in  part  payment  of  his  wages. 
The  tuition  of  indigent  pupils  cannot  be  paid  out  of  the  public  money. 
There  is  but  one  legal  mode  of  paying  teachers. 

Two  questions  were  submitted  to  the  Superintendent  for  his 
opinion.  They  are  given  as  presented  to  him,  and  his  answers 
are  annexed. 

By  John  A.  Dix,  January  17,  1835.  Question  1.  If  a 
teacher  is  engaged  by  the  trustees  of  a  district  at  a  certain  sum 
per  month,  does  he  receive  the  public  rnoney  in  part  pay,  or  is 
he  entitled  to  it  exclusive  of  his  wages  ? 

Answer.  He  is  to  receive  the  public  money  in  part  payment 
of  his  wages.  If  he  were  to  receive  it  exclusive  of  the  sum  agreed 
on  as  his  monthly  wages,  he  would  be  paid  more  than  the  trus- 
tees are  bound  to  give  him,  and  it  would  be  a  fraud  upon  the 
district. 

Question  2.  If  he  (the  teacher)  takes  charge  of  any  district 
school  at  a  fixed  price  per  scholar,  (say  two  dollars,)  have  the 
trustees  the  power  of  distributing  the  balance  of  the  public  mo- 
ney (after  paying  him  the  full  price  for  poor  pupils,)  among  those 
who  send  children  to  school ;  or.  has  the  teacher  a  right  to  de- 
mand the  residue  without  distribution,  after  having  been  paid 
the  full  price  for  all  the  poor  pupils  who  have  attended  through 
the  quarter  ? 

Answer.  Trustees  have  no  right  to  make  a  direct  payment  of 
the  tuition  of  poor  pupils  out  of  the  public  money,  or  to  make  any 
formal  distribution  of  the  public  money  for  the  benefit  of  the 
children  attending  a  school.  The  law  is  clear  and  expHcit  on 
all  these  points,  and  if  it  is  followed,  no  embarrassment  or  diffi- 
culty can  possibly  arise.     Let  us  see  what  the  law  requires. 

1.  The  trustees  are  to  pay  the  wages  of  the  teacher  (he  being 
duly  qualified,)  "out  of  the  moneys  which  shall  come  into  their 
hands  from  the  commissioners  of  common  schools,  so  far  as  such 
moneys  shall  be  sufficient  for  that  purpose." 

2.  "  To  exempt  from  the  payment  of  the  w^ages  of  teachers 
such  indigent  persons  within  the  district  as  they  shall  think  pro- 
per." 

3.  To  collect  the  residue  of  the  teacher's  wages,  after  paying 
him  the  public  money,  "  excepting  such  sums  as  may  have  been 
collected  by  the  teachers,  from  all  persons  liable  therefor." 

These  are  the  three  steps  authorized  by  law,  and  they  are 
above  stated  in  the  order  in  which  they  should  be  taken. 

Let  us  look  at  the  practical  effect  of  these  provisions  by  sup- 
posing a  case  and  applying  them  to  it.  A  teacher  may  be  hired 
by  the  trustees  at  so  much  per  month  or  at  so  much  per  scholar. 
4i 


206  GASES    DECIDED   BY    THE 

The  only  difference  is,  that  the  amount  of  his  compensation  is, 
in  one  case,  reduced  to  certainty,  and  in  the  other,  it  is  contingent 
on  the  number  of  scholars.  Either  may  or  may  not  be  most  ad- 
vantageous to  those  who  pay,  according  to  circumstances.  The 
first  mode  is  the  most  simple,  and  is,  therefore,  preferable.  Let 
us  suppose  the  last  case. 

A  teacher  is  hired  to  instruct  a  school  at  two  dollars  per  scho- 
lar for  the  term.  He  has  forty  scholars,  of  whom  five  are  the 
children  of  indigent  parents.  He  is  entitled  at  the  close  of  the 
term  to  $80,  and  the  trustees  have  on  hand  $20  of  public  mo- 
ney applicable  to  the  term.  Now,  what  is  the  duty  of  the  trus- 
tees?    It  is  very  plain. 

1.  They  pay  him  the  public  money,  $20. 

2-  They  exempt  the  parents  of  the  five  indigent  children. 

3.  They  make  out  a  rate  bill  for  $60  with  the  collector's  fees 
(five  per  cent)  added  thereto,  assessing  each  of  the  parents  of  the 
thirty-five  scholars  with  his  just  proportion  of  the  amount  accord- 
ing to  the  number  of  his  children  who  have  been  instructed  and 
to  the  time  during  which  they  have  received  instruction. 

This  is  the  only  mode  of  proceeding  recognized  by  law,  and 
it  must  be  strictly  followed.  Whether  the  teacher  is  engaged  at 
so  much  per  month  or  so  much  per  scholar  makes  no  difference. 
These  are  different  modes  of  ascertaining  the  amount  of  his  com- 
pensation. In  the  first  case  it  is  ascertained  at  the  beginning, 
and  in  the  second  at  the  close,  of  his  term. 

The  Trustees  of  school  district  No. in  the  town 

of  White  Creek,  ex  parte. 

Teacher's  board  bills  cannot  be  included  in  a  rate  bill,  or  paid  out  of  the  public 

money. 

In  this  case  the  teacher  was  boarded  by  one  of  the  trustees  of 
the  district,  and  in  making  out  a  rate  bill  for  his  wages  his  board 
bill  was  included  in  it,  the  inhabitants  having  agreed  to  provide 
his  board. 

By  John  A.  Dix,  January  19,  183.5.  Board  bills  for  teach- 
ers cannot  be  allowed  to  be  connected  in  any  manner  with  the 
payment  of  their  wages.  The  whole  thing  is  wrong  and  unau- 
thorized by  law.  -Their  board  must  be  paid  by  themselves,  or 
by  the  inhabitants  by  subscription.  It  cannot  be  paid  out  of  the 
public  money,  or  included  in  a  rate  bill.  There  is  no  safety  but 
m  a  strict  adherence  to  the  course  pointed  out  by  law.  Whether 
the  particular  mode  of  payment  is  the  same  in  the  end  or  not  to 
the  inhabitants  of  the  district,  is  not  the  question.  The  impor- 
tant point  is,  whether  the  trustees  have  proceeded  according  to 
law.     They  have  not,  and  they  should  make  some  prompt  ar- 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  207 

rangeraent  of  the  matter  for  the  satisfaction  of  the  parties  con- 
cerned. Trustees  have  no  more  right  to  inchide  a  teacher's 
board  bill,  or  any  part  of  it,  in  a  rate  bill,  than  they  have  to  in- 
clude it  in  a  bill  for  a  pair  of  shoes  or  any  other  article  for  his 
personal  use. 

4-; 

The  Trustees  of  school  district  No. in  the  town 

of  Locke,  ex  parte. 

Non-residents  are  taxable  for  fuel  if  they  own  improved  lands  in  the  district. 

The  following  question  was  proposed  for  the  opinion  of  the 
Superintendent. 

At  a  district  meeting  a  tax  is  voted  to  procure  fire  wood  for  the 
school,  and  for  the  purpose  of  making  some  necessary  repairs  in 
the  school-house.  The  tax  is  assessed.  A,  B  and  C  live  in  an 
adjoining  district,  but  each  own  land,  which  they  themselves  im- 
prove, within  this  district,  and  which  is  not  taxable  in  the  dis- 
trict where  they  Uve.  Their  land  is  taxed,  and  they  decline  pay- 
ing the  tax  on  the  ground  that  they  can  not  be  legally  taxed  for 
fire  wood;  the  tax  is  quite  inconsiderable.     Is  it  a  legal  tax? 

By  John  A.  Dix,  January  19,  1835.  Ansioer.  The  tax 
is  legal  and  may  be  collected.  A  tax  for  repairing  a  school- 
house  or  for  fire  wood,  where  fuel  is  not  furnished  in  kind,  is  im- 
posed in  the  same  maimer  as  a  tax  for  building  a  school-house. 
Non-residents  may  be  included  in  the  tax  hst  in  either  case  if  they 
have  lands  in  the  district  cleared  and  cultivated,  which  are  not 
taxable  in  another  district. 

The  Trustees  of  school  district  No.  1  in  the  town  of 
Castile,  ex  parte. 

If  two  teachers  are  employed  at  the  same  time,  the  rate  bill  for  their  wages  must 
be  graduated  by  the  number  of  days  of  attendance,  without  reference  to  the 
studies  or  branches  in  which  different  children  may  have  been  instructed. 

Scholars  may  be  divided  and  put  in  different  rooms. 

The  Superintendent  having  decided  on  a  question  presented 
from  this  district,  (see  ante  page  203,)  that  a  school-house  should 
not  be  made  larger  than  necessary  for  common  school  purposes, 
he  was  desired  to  state  whether  a  school  could  be  divided  into 
departments,  and  different  rates  of  tuition  charged  for  different 
branches  of  instruction. 

By  John  A.  Dix,  /awwary  23,  1835.  I  have  already  said 
that  a  school  district  may  levy  such  a  tax  as  is  necessary  for  con- 
structing a  building  suited  to  the  purposes  of  the  district,  and  no 
more.  The  amount  of  the  tax  is,  of  course,  subject  to  the  le- 
gal limitation  of  $400,  unless  the  commissioners  of  common 

# 


366  *  CASES    DECIDED   BY   THE 


schools  certify  a  larger  sum  to  be  required.  Whether  the  bu3d- 
ing  shall  have  three  rooms  or  one,  or  whether  it  shall  have  two 
stories  or  one,  is  a  matter  for  the  deterraination  of  the  inhabi- 
tants. 

If  two  or  more  teachers  are  employed  in  a  school  district,  the 
amount  of  compensation,  which  each  shall  receive,  may  be  re- 
gulated by  agreement  in  the  manner  best  suited,  in  the  opinion 
of  the  trustees,  to  the  interest  of  the  district.  But  the  inhabi- 
tants cannot  be  required  to  pay  diflferent  rates  of  tuition  accord- 
ing to  the  branches  of  study  in  which  theii  children  are  instruct- 
ed. The  law  has  settled  the  rale  of  contribution  for  the  pay- 
ment of  teachers'  wages.  It  must  be  according  to  the  number 
of  days,  during  which  each  person  has  sent  to  school.  A  man- 
who  sends  two  children  to  school  for  thirty  days,  will  pay  precise, 
ly  as  much  again  as  a  man,  who  has  sent  only  one  child  to  school 
for  thirty  days.  A  rate  bill  made  out  on  any  other  principle 
would  be  illegal  and  could  not  be  collected.  It  is  manifest, 
therefore,  that  any  distinction  as  to  the  rate  of  tuition  to  be  paid 
in  different  departments  of  your  proposed  school  is  whollj  inad- 
missible, 

I  see  no  objection  to  dividing  the  scholars  and  putting  them 
indifferent  rooms  under  separate  instructors.  This  is  in  effect 
a  division  into  classes  for  study  and  recitation.  Every  child  in 
the  district  would  have  an  equal  right  to  be  instructed  in  either 
and  all  of  the  departments.  The  only  principle  on  which  the 
division  can  be  made,  is  the  proficiency  of  the  pupils  in  the  stu- 
dies respectively  pursued  in  each.  Let  these  matters  be  tho- 
roughly understood,  and  I  apprehend  no  difficulty,  if  your  ar- 
rangements are  commenced  with  the  general  concurrence  of  the 
inhabitants.* 

The  Commissioners  of  Common  Schools  of  the  town 
of  Madison,  ex  parte. 

The  childrea  of  laborers  temporarily  employed  on  canals  are  not  to  be  incladed 
«  in  school  district  reports. 

This  was  an  application  to  the  Superintendent  for  his  opinion 
as  to  the  propriety  of  including  in  the  annual  reports  of  school 
districts  the  children  of  such  laborers  on  the  Chenango  canal  as 
were  actually  at  work  in  the  districts  on  the  last  day  of  Decem- 
ber, 1834. 

By  John  A.  Dix,  January  24,  1835.  I  hive  received  your 
, .^_: . . *. 

•  See  the  cases  of  Zeno  Allen  and  others  af^ainst  the'  trustees  of  school  No. 
I  in  the  town  of  Hounsfleid,  page  4,  and  a  deciaion  bv  A.  0.  Flagg  on  the  16th 
July  1829,  page  43. 


4. 


SUPERfNTENDENT    OF    COMMON   SCHOOLS.  209 

lei^r  stating  that  you  understand  the  trustees  of  one  or  more 
school  districts  in  your  town  are  about  to  include  in  their  annual 
reports  the  children  of  laborers  on  the  Chenango  canal. 

I  am  of  opinion  that  these  persons  have  not  such  a  fixed  resi- 
lience, as  the  law  intends,  to  justify  the  enumeration  of  their 
childien  among  those  residing  in  the  district  on  the  last  day  of 
December.  School  districts  are  formed  with  a  view  to  the  accom- 
modation of  the  inhabitants  residing  permanently  within  them, 
and  with  a  regard  to  the  numljer  of  children  who  may  be  conven- 
iently instructed  in  the  schools.  The  arrangements  of  the  inhabi- 
(ants  are  made  in  conformity  to  the  actual  condition  of  the  districts, 
oi*  possibly,  with  reference  to  such  increase  as  in  the  ordinary 
progress  of  settlement  maj^  be  reasonably  anticipated.  If  the 
children  of  persons  coming  in  large  numbers  to  sojourn  tempo-  ' 
rarily  in  the  district  for  the  purpose  of  constructing  roads  or  ca- 
nals leading  through  it,  are  to  be  deemed  residents,  they  would 
have  a  privilege  in  the  schools  which  might  become  so  crowded 
as  to  prejudice  seriously  the  interests  of  the  permanent  inhabi- 
sants.  and  might,  indeed,  for  all  practical  purposes,  work  a  dis- 
organization of  the  district  for  the  time  being.  A  construction  of 
the  law  which  leads  to  such  consequences,  would  certainly  not 
consist  with  its  intention,  and  under  any  view  of  the  subject  it 
seems  to  rac  that  the  children  of  the  persons  refeiTed  to  cannot  be 
regarded  as  coming  wathin  the  provision,  under  which  the  an- 
nual enumeration  is  made. 

Should  the  trustees  of  any  of  the  school  districts  include  the 
children  of  laborers  on  the  Chenango  canal  in  their  reports,  it 
will  be  your  duty  to  see  that  the  proper  deduction  is  made.  I 
can  readily  conceive  that  a  difference  of  opinion  may  exist  with 
i egard  to  the  propriety  of  iacluditag  them ;  and  therefoie  I  would 
suggest  that  the  trustees  of  the  districts  to  which  you  refer  should 
be  immediately  advised  of  my  construction  of  the  law,  in  order 
that  their  reports  may  be  made  out  in  conformity  with  it 

A.  G.  H.  a  teacher,  against  the  Inspectors  of  com- 
mon schools  of  the  town  of  Petersburgh. 

Inspectors  are  inexcusable  for  giving  incompetent  teachess  certificates  of  quali- 
fication. 

The  facts  of  this  case  appear  by  the  Superintendent's  order. 

By  John  A.  Di3t,  January  24,  1835.  The  Superintendent 
of  Common  Schools  has  had  under  consideration  the  appeal  of 
A.  G.  H.  from  a  decision  of  the  inspectors  of  common  schools  of 
the  town  of  Petersburgh  in  the  county  of  Rensselaer,  in  refusing 
tx>  grant  him  a  certificate  of  qualification  after  having  examined 
him  as  a  candidate  for  teaching  a  school  in  said  town- 

14  -i^'' 


210  CASES    DECIDED   BY    THE 

On  the  17th  inst.  the  Superintendent  addressed  a  letter  to  the 

J^  above  mentioned  inspectors,  calling  on  them  for  their  reasons  in  re- 
fusing Mr.  H.  a  certificate.  This  communication  was  made  upon 
an  examination  of  two  certificates  of  qualification  from  the  inspec- 
tors of  the  towns  of  Hoosick  and  Sand-Lake,  and  without  a  close 
inspection  of  Mr.  H's.  letter  of  appeal,  in  which  the  certificates 
were  enclosed.  The  Superintendent  having  received  a  state- 
ment from  the  inspectors  of  Petersburgh,  and  having  carefully 
examined  all  the  papers  submitted  to  him,  is  of  opinion  that  they 
were  perfectly  right  in  withholding  a  certificate  of  qualification. 
Without  any  reference  to  the  errors  which  the  inspectors  allege 
were  made  by  Mr.  H.  in  parsing  a  plain  sentence,  the  Superinten- 
•  dent  perceives  that  the  word  please  is  three  times  spelt  "  pleas'" 
in  his  letter  of  appeal,  and  that  the  appeal  is  addressed  to  the 

%t.     "  Superintender'-  of  Common  Schools.     An  individual  who  is  so 

plahily  ignorant  of  the  English  language  is  surely  unfit  to  be 

,      charged  with  the  management  of  a  school;  and  the  Suj^erinten- 

"»>  dent  is  at  a  loss  to  conceive  how  the  inspectoi-s  of  Hoosick  and 
Sand-Lake  coidd  have  granted  him  a  certificate  of  qualifica-  * 
tion.  The  state  has  provided  liberally  for  the  support  of  the 
system  of  common  school  education;  but  if  the  officers,  who 
are  entrusted  by  law  with  the  examination  of  teachers,  will  not 
consider  it  their  duty  to  exclude  from  the  direction  of  the  schooli> 

1^  individuals  wholly  incompetent  to  give  instruction  in  the  most 
simple  branches,  the  public  bounty  will  not  only  be  expended  i«i 
vain,  but  it  will  be  made  instrumental  to  a  misdirection  of  the 
intellectual  faculties.  It  is  a  subject  of  general  complaint  that 
the  standard  of  qualification  for  teachers  in  the  common  schools^ 

|<  is  extremely  low;  and  this  evil  must  continue  to  exist,  if  the  in- 
spectors, on  whose  decisions  the  standard  in  a  great  measure  de- 
pends, will  not  perform  their  duty  rigidly  and  with  proper  firm- 
ness. All  that  the  state  exacts  is,  that  a  school  shall  be  kepi 
thiee  months  pei*  annum  in  each  district  by  a  teacher  properly 
qualified.  The  requisition  is  by  no  means  unreasonable,  and 
the  inspectors  should  consider  it  a  solemn  duty,  not  only  to  with- 
hold a  certificate  when  the  individual  is  not  fiilly  competent  to 
teach,  but  to  institute  a  rigid  scrutiny  into  the  qualifications  of 

r^jp  all  who  present  themselves  as  candidates  for  examination  as 
teachers.  The  Superintendent  is  willing  to  believe  that  in  thb 
case  the  inspectors  of  Hoosick  and  Sand-Lake  have  granted  Mr. 
H.  a  certificate  on  a  very  superficial  examination.  He  trusts, 
however,  that  a  similar  ceise  will  not  again  occur,  but  that  they 
will  consider  it  due  to  themselves  to  withhold  certificates,  except- 
ing where  they  are  satisfied,  from  careful  examination,  that  the 
propriety  of  granting  them  is  in  no  danger  of  being  impeached 
and  their  decisions  brought  into  disrepute  by  the  unworthiness  oi 

•  -I 


SUPERINTENDENT    OF    COMMON   SCHOOLS.  211 

«|^:  those  in  whose  favor  they  are  made.     It  is  due  to  Mr.  H.  to  state  . 

that  his  moral  character  is  not  called  in  question.     The  only 
^    ground  of  objection  to  him  is  his  want  of  the  necessary  learning 

and  ability  to  teach  a  school. 

The  Trustees  of  school  district  No,  8  in  the  city  of 
Albany,  ex  parte. 

Evening  schools  may  be  kept  in  sdiool  districts  in  Albany,  under  certain  restric- 
tions. 

By  John  A.  Dix,  January  30,  1835.  A  question  having 
*  "Arisen  in  school  district  No.  8  in  the  city  of  Albany,  with  regard 
to  the  propriety  of  enumerating,  under  section  11  of  the  act  of 
17th  April,  1830,  relating  to  common  schools  in  said  city,  chil- 
dren who  have  attended  an  evening  school  kept  in  said  district 
under  the  direction  of  the  trustees  for  the  instruction  of  appren- 
tices and  others,  who  are  obliged  to  labor  during  the  day,  and 
who  would,  if  such  enumeration  were  not  admissible,  be  wholly 
eKcluded  from  a  participation  in  the  benefit  of  the  common  school 
fimd : 

The  Superintendent  of  common  schools  is  of  opinion  that  the 
attendance  of  the  pupils  in  such  evening  school  may  be  included 
in  the  account  kept  by  the  teacher  pursuant  to  the  provisions  of 
*  the  section  and  act  above  referred  to:  Provided,  1st.  That  such 
evening  school  shall  have  been  kept  under  the  direction  of  the 
trustees,  and  put  in  all  respects  oa  the  same  footing  as  the  day 
school.  2d.  That  no  pupil  attending  said  evening  school  shall 
have  been  included  in  the  account  of  those  who  attend  the  day 
school:  and,  3d.  That  said  school  shall  have  been  kept  each 
evening  as  many  hours  as  shall  make  each  school  time  equal 
in  duration  to  the  average  length  of  the  school  time  of  the  day 
school 

C.  W.  M.  a  teacher  in  school  district  No.  1  in  the 
town  of  Turin,  ex  parte. 

If  a  teacher's  certificate  is  annulled,  the  trustees  may  dismiss  him. 

C.  W.  M.  was  employed  by  the  trustees  of  school  district  No. 
I  in  the  town  of  Turin,  to  teach  the  district  school  four  months. 
At  the  time  he  was  so  employed,  he  held  a  certificate  of  qualifi- 
cation from  the  inspectors  of  common  schools  of  the  town.  At 
the  expiration  of  three  months  the  inspectors  annulled  his  certifi- 
cate, and  the  trustees  dismissed  him.  The  question  submitted 
was,  whether  they  could  dismiss  him  before  the  expiration  of  the 
time  for  which  he  was  engaged. 

By  John  A.  Dix,  January  31,  1835.     I  am  of  opinion  that 


1.^ 


212  CASES    DECIDED    BY   THE 

the  act  of  annulling  a  certificate  of  qualification  by  the  inspectors  ol 
common  schools  releases  the  trustees  of  a  school  district  from  all 
obligation  to  continue  in  employment  the  teacher  whose  certifi- 
cate is  so  annulled.  If  the  trustees  have  entered  into  a  contract 
with  him  for  a  specific  term,  and  his  certificate  is  in  the  mean 
time  annulled  as  the  law  provides,  the  trustees  are,  in  my  opinion, 
at  liberty  to  rescind  the  contract.  They  engaged  him  as  a  qua- 
lified teacher,  and  the  moment  he  ceased  to  be  so  there  was  a 
failure  of  the  consideration,  which  was  at  the  foundation  of  their 
contract  with  him.  If  the  trustees  allow  him  to  teach  the  school 
after  notice  from  the  commissioners  that  they  have  annulled  his 
certificate,  it  is  a  continuance  of  the  contract,  and  they  will  not,  at 
a  subsequent  period,  be  allowed  to  dispute  it.  But  I  think  they 
may  dismiss  him  for  the  reason  assigned.  Otherwise  a  district 
might  forfeit  its  right  to  a  share  of  the  public  money  for  want  of 
the  requisijte  period  of  instruction  by  a  qualified  teacher.  In  this 
construction  of  the  law  there  is  no  hardship,  as  the  teacher  enters 
into  the  contract  with  full  knowledge  of  his  liabilities. 

The  Trustees  of  school  district  No.  2  in  the  town  of 
Summit,  ex  parte. 

Persons  set  off  from  a  school  district  without  the  consent  of  the  trustees  do  not 
cease  to  belong  to  it  until  three  ig.oi?lhs  after  notice  in  writing  to  the  trustees. 

A  collector  has  thirty  days  from  the  deii«exy  of  a  tax  list  :md  warrant  to  collect 
a  tax. 

On  the  7th  Nov.  1834  the  commissioners  of  common  schools 
of  the  town  of  Summit,  served  on  the  trustees  of  school  district 
No.  2  in  said  town,  a  notice  that  they  had  set  off"  five  inhabi- 
tants at  their  request,  to  district  No.  1.  On  the  Slst  Dec.  ensu- 
ing a  tax  of  $130  was  voted  to  build  a  new  school-house.  The 
question  proposed  was,  whether  the  persons  thus  set  off  from 
district  No.  2,  the  trustees  not  having  consented  to  the  alteration, 
were  liable  to  pay  their  proportion  of  the  tax. 

By  John  A.  Dix,  January  6,  1835.  An  alteration  in  a 
school  district  does  not  take  effect  unless  the  trustees  consent, 
until  three  months  after  notice  to  them.  The  three  persons  set 
off  from  your  district  will  therefore  continue  to  be  inhabitants  of 
the  district  until  three  months  from  the  day  on  which  one  of  the 
trustees  had  notice  in  writing  of  the  alteration.  Until  the  three 
months  have  fully  expired,  they  are  to  be  treated  in  all  respecte 
as  inhabitants  of  the  district :  their  children  are  to  be  enume- 
rated in  it,  and  they  must  pay  their  proportion  of  all  taxes  assess- 
ed on  the  district  in  the  mean  time. 

The  tax  voted  on  the  last  of  December  to  build  a  school-house 
was,  I  suppose,  assessed  as  required  by  taw  within  one  month 


« 


i    ♦ 


It  8VPER1NT1ENDENT    OP   COMMON   SCHOOLS.  213 

after  the  vote  taken ;'  but  the  collector  has  thirty  days  from  the 
delivery  of  the  tax  list  and  warrant  to  him  to  make  the  col- 
lection. If  the  tax  list  is  made  out  according  to  law,  and  the 
three  persons  are  included  in  it  before  the  time  when  they  will 
become  inhabitants  of  the  district  to  which  they  are  set  off,  they 
are  bound  to  pay  the  tax.  All  tax-lists  are  to  include  the  name 
of  every  taxable  inhabitant  residing  in  the  district  at  the  time 
they  are  made  out.  This  settles  the  whole  question  of  liabi- 
lity. 

.The  Inspectors  of  common  schools  of  the  town  of 
Oitsego,^  ex  'parte. 

Tf  the  annual  report  of  a  school  district  includes  pfttt  of  two  years,  it  is  a  false 

report. 
The  wages  of  ateachernot  qualified  according  to  law  maybe  collected  by  a  rate 

bill,  but  he  cannot  receive  the  public  money. 
If  trustees  pay  public  money  to  a  teacher  not  qualified,  they  may  be  prosecuted 

for  the  amount  as  for  a  balance  in  their  hands; 

By  John  A.  Dix,  February  23,  1835.  The  inquiries  con- 
tained in  your  letter  are  given  below  at  leng<,h,  and  the  answers 
required  of  me  annexed. 

1st.  A.  B.  and  C,  trustees  of  school  district  No.  in  the 

town  of ,  employ  D.  to  teach  their  school  from  November 

1st,  1834,  to  April  l«t,  1835.  He  teaches  one  or  more  weeks 
and  presents  himself  to  the  inspectors  for  examination,  obtains  a 
certificate,  and  continues  his  school.  The  trustees  in  their  re- 
turn state,  "  Our  school  has  been  taught  five  months  by  a  quali- 
fied teacher."     Is  it  a  true  or  false  return? 

Answer.  It  is  unqiiestionably  a  false  return,  unless  the  dis-^'* 
trict  school  was  taught  a  sufficient  time  during  the  year  1834, 
previous  to  the  inspection  of  the  teacher  referred  to,  by  some 
other  teacher  quahfied  according  to  law.  The  annual  report  of 
the  trustees  must  be  dated  on  the  first  day  of  January  of  the 
year  in  which  it  is  transmitted ;  and  it  must  specify  the  whole 
time  any  school  has  been  kept  in  the  district  during  the  year 
ending  on  the  day  previous  to  the  date  of  such  report,  distinguish- 
ing what  portion  of  the  time  such  school  has  been  kept  by  quali- 
fied teachers. 

If,  in  the  case  stated  by  you,  no  school  was  kept  during  the 
year  1834  by  a  qualified  teacher,  excepting  the  one  specified, 
the  report  is  false  in  stating  that  a  school  has  been  taught  five 
months  by  a  qualified  teacher,  as  it  includes  part  of  the  year 
1835,  when  it  professes  to  be  a  report  for  the  year  1834. 

2nd.  They  pay  the  public  money  as  far  as  it  will  go  towards 
the  wages  of  the  teacher,  and  then  assess  the  parents  of  the  chil- 
dren for  the  remainder,  as  if  the  school  had  been  taught  the 


whole  time 


CASES    UECIDED   BV    THE 


whole'  time  by  a  qualified  teacher.  Is  it  legal  or  illegal?  If  il- 
legal, what  is  their  Habiiily? 

Answer.  If  the  public  money  paid  to  him  does  not  exceed 
the  amount  of  his  wages  during  the  time  he  held  a  certificate, 
the  payment  is  legal;  and  the  balance  of  bis  wages  may  be 
collected  of  those  who  sent  children  to  school.  Suppose  for  in- 
stance, that  a  teacher  is  employed  on  the  first  day  of  January 
for  three  months  at  $15  per  month,  without  a  certificate  of  qual-i 
fication.  He  is  inspected  and  receives  a  certificate  on  the  let. 
day  of  March.  At  the  end  of  his  term,  the  last  of  March,  the 
trustees  may  pay  him  $15,  a  sum  equal  to  his  wages  for  the 
month  of  March,  during  which  time  he  held  a  certificate,  out 
of  the  public  moneys  in  their  hands;  but  they  cannot  pay  him 
more.  The  balance,  $30,  must  be  collected  by  a  rate  bill,  in- 
cluding all  persons  who  have  sent  children  to  school  during  any 
part  of  the  term  of  three  months,  excepting  such  as  may  be 
exempted  by  the  trustees  on  account  of  their  inability  to  pay. — 
Whether  the  teacher  holds  a  certificate  or  not,  the  right  of  the 
trustees  to  collect  his  wages  of  those  who  have  sent  children  to 
school  is  the  same  ;*  but  unless  he  does  hold  a  certificate,  they 
cannot  pay  him  any  portion  of  the  public  money.  If  they  pay 
him  his  wages  out  of  the  public  money  during  any  period  of 
time  when  he  was  not  qualified,  it  is  illegal,  and  they  are  liable 
to  a  prosecution  as  will  be  seen  hereafter, 

3J.  Have  the  trustees  a  right  to  appropriate  the  public  money 
to  the  payment  of  the  wages  of  a  teacher  who  has  no  certificate 
dated  within  a  year:  and  if  they  have  not  and  do  it,  how  are 
they  to  be  made  answerable? 

Ajiswer.  They  have  no  right  to  pay  public  money  to  a  teacher, 
who  has  not  received  a  certificate  of  quahfication  from  the  in- 
spectors of  common  schools  of  the  town  within  a  year.  If  they 
do  so,  and  make  a  report,  on  which  the  district  will  be  entitled 
to  receive  its  portion  of  the  public  money  from  the  commission- 
ers of  common  schools,  the  report  must  necessarily  be  false,  as 
it  must  set  forth  that  all  moneys,  received  during  the  year  re- 
ported, have  been  appUed  to  the  payment  of  the  compensation 
of  a  qualified  teacher :  and  no  teacher  is  qualified,  unless  he 
holds  a  certificate  dated  within  one  year  from  the  inspectors  of 
the  town.  Should  such  a  report  be  made,  the  trustees  signing 
it  would  forfeit  the  sum  of  twenty-five  dollars,  and  be  guilty  of 
a  misdemeanor  by  virtue  of  the  provisions  of  section  96,  page 
485,  1  R.  S. 

It  has  been  supposed  that  trustees  of  school  districts  might  be 
prosecuted  under  section  39,  page  696,  2  R.  S.  for  paying  pub- 
lic money  to  a  teacher  not  qualified  according  to  law ;  but  al- 
though the  act  relating  to  common  schools  intends  that  the  pub- 


SUPERINTENDENT   OP   COMMON   SCHOOLS.  215 

lie  moiffeys  shall  not  be  paid  to  teachers  who  do  not  hold  certifi- 
cates of  qualification  from  the  inspectors,  the  prohibition  does 
not  appear  to  be  so  clear  and  express  as  to  be  made  the  ground 
of  a  criminal  prosecution. 

But  I  am  decidedly  of  opinion  tliat  an  action  for  money  had 
and  received  by  trustees  of  school  districts  against  their  predeces- 
sors will  lie  under  section  102,  page  486,  1  R.  S.  which  gives 
successors  the  same  r«nedies  for  the  recovery  of  an  unpaid  ba- 
lance in  the  hands  of  a  former  trustee  or  his  representatives,  as 
are  given  to  commissioners  of  common  schools  in  such  a  case. 
See  section  40,  page  474,  same  volume.  Although  trustees  of 
school  districts  are  not  prohibited  in  so  many  words  from  paying 
public  money  to  a  teacher  not  qualified,  yet  the  intentiwi  of  the 
law  is  clear.  It  is  the  duty  of  the  trustees  to  pay  the  wages  of 
''  teachers  when  qualified,  out  of  the  moneys  which  shall  come 
into  their  hands  from  the  commissioners,"  &c.  by  virtue  of  sub. 
8,  of  sec.  75,  page  481,  1  R.  S.  Under  section  24,  same  vol. 
page  471,  no  moneys  can  be  paid  to  a  school  district,  unless 
during  the  previous  year  a  school  has  been  kept  therein  three 
months  by  a  qualified  teacher,  and  unless  "all  moneys  received 
from  the  commissioners  during  that  year,  have  been  applied  to 
the  payment  of  the  compensation  of  such  teacher."  The  pay- 
ment of  public  moneys,  as  the  school  moneys  received  from  the 
<iommissioners  are  usually  called,  to  a  teacher  not  qualified,  in- 
volves therefore  a  forfeiture  to  the  district,  in  which  such  pay- 
ment is  made,  of  its  right  to  receive  any  public  money  the  next 
year.  Such  payment  by  trustees  I  consider  just  as  unauthoriz- 
ed and  illegal  as  if  it  had  been  applied  to  the  erection  of  a  school- 
house  or  the  purchase  of  fuel.  It  is  not  a  payment  in  law,  and 
a  recovery  may  be  had  against  them,  as  I  have  before  stated, 
for  the  amount  as  an  unpaid  balance  in  their  hands.  This  is 
my  opinion  on  full  consideration,  and  I  think  any  court  would 
so  decide. 

The  inhabitants  of  school  district  No.  12  in  the  town 
of  Genoa,  ex  parte. 

It  inspectors  examine  a  teacher,  and  refuse  to  give  him  a  certificate  of  qualifi- 
cation, the  Superintendent  will  not  interfere  without  very  strong  reasons. 

In  this  case  a  teacher  was  presented  to  the  inspectors  of  com- 
mon schools  of  the  town  of  Genoa  for  examination.  The  three 
inspectors  of  the  town,  and  two  of  the  commissioners,  attended  for 
the  purpose.  The  teacher  passed  an  examination  in  several 
branches,  but  declined  answering  any  questions  in  grammar  or 
geography.  The  inspectors  therefore  refused  to  grant  him  a  cer- 
tificate of  qualification.     The  inhabitants  of  the  district  being 


4?; 


216  CASES    DECIDED   BY    THM 

desirous  of  continuing  hinri  in  employment,  and  of  paying  him 
the  public  money,  applied  to  the  Superintendent  to  know  whe- 
ther he  would  review  the  decision  of  the  inspectors. 

By  John  A.  l)ix,  February  24, 1835.  The  statute  has  con- 
fided the  power  of  examining  teachers  and  granting  them  certi- 
ficates of  quaUfication  to  the  inspectors  of  common  schools,  and 
with  the  exercise  of  this  power  I  could  not  with  propriety  inter- 
fere, excepting  in  a  very  strong  case.  It  would  Ije  extremely 
difficult  for  me  at  a  distance  to  ascertain  whether  the  individual, 
who  had  been  refused  a  certificate  of  qualification,  ought  to  re- 
ceive it.  I  did,  on  a  recent  occasion,  sustain  the  decision  of  the 
inspectors  of  common  schools  of  the  town  of  Petersburgh,  in  re- 
fusing to  certify  to  the  qualifications  of  a  teacher.  He  appealed 
to  me,  and  I  dismissed  his  appeal  on  the  evidence  furnished  by 
the  appeal  itself  tl>at  he  was  not  qualified.*  But  the  case  stated 
by  you  presents  much  greater  difficulty..  I  could  take  notice  of 
it  on  an  appeal  regularly  presented,  but  I  should  hardly  deem 
it  proper  to  set  aside  the  decision  of  the  inspectors  and  pronounce 
the  person  referred  to  a  qualified  teacher,  if  he  had  been  consider- 
ed deficient  in  a  knowledge  of  any  branch  of  instmction  usually 
taught  in  the  common  schools,  or  if  he  had  refused  to  be  examin- 
ed in  any  such  branch ;  for  his  refusal  could  only  be  regarded  as 
a  tacit  confession  of  his  incompetency  to  sustain  an  examination. 

The  Trustees  of  school  district  No* in,  the  town 

^.^  of  Hoosick,  ^x  parte. 

If  a  man  removes  from  a  district  on  the  last  day  of  December,  his  children  are  to 
i  be  enumerated  in  the  district  into  which  he  moves. 

A.  B.  removed  on  the  31st  day  of  December,  1834,  from  one 
school  district  in  the  town  of  Hoosick  into  another  district  in  the 
same  town.  The  removal  was  commenced  and  completed  on 
that  day.  The  question  proposed  was,  in  which  district  his  chil- 
dren were  to  be  enumerated. 

By  John  A.  Dix,  February  26,  1835.  The  rule  is  settled 
that  the  children  of  a  man  removing  on  the  last  day  of  Decem- 
ber from  one  school  district  to  another,  are  to  be  enumerated  in 
the  district  into  which  he  moves.  The  equity  of  the  rule  is  this: 
the  enumeration  is  made  with  a  view  to  the  apportionment  of 
the  money  for  the  use  of  schools  for  the  succeeding  year,  and  it 
is  proper  that  the  money  drawn  upon  the  basis  of  that  enumer- 
ation, should  as  far  as  possible,  go  to  the  district  in  which  the 
children  enumerated  are  to  reside,  and  in  which  the  money  re- 

•  See  the  case  of  A.  G.  H.  against  the  inapectora  of  common  schoob  of  the 
town  of  Petersburgh ,  page  209 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  217 

ceived  for  their  benefit  is  to  be  expended.  I  have,  therefore,  de- 
cided that  if  a  man  changes  his  residence  at  any  time  during 
the  day  on  the  31st  of  December,  his  children  shall  be  enumerat- 
ed in  the  district  into  which  he  moves. 

The  Collector  of  school  district  No.  II  in  the  town 
of  Farmington,  ex  parte. 

If  a  collector  takes  and  sells  property  to  pay  a- tax,  and  the  owner  refuses  to  re- 
ceive the  excess,  the  collector  must  retain  Uie  amount  in  his  hands. 

This  was  a  case  in  which  the  collector  of  school  district  No.  1 1 
in  the  town  of  Farmington  had  sold,  under  a  warrant  issued  by 
the  trustees  for  the  collection  of  a  tax  to  build  a  school-house,  a 
wagon  belonging  to  A.  B.,  a  taxable  inhabitant  of  the  district. 
The  amount  of  A.  B.'s  tax  was  $7 .  98,  and  the  wagon  was  sold 
for  $20.  On  the  ensuing  day  the  collector  tendered  to  A.  B.  the 
balance,  amounting  to  ^12.02,  which  he  refused  to  take,  and 
had  continued  so  to  refuse,  although  he  had  been  repeatedly  re- 
quested to  receive  it.  Under  these  circumstances,  the  opinion  of 
the  Superintencfent  was  asked  as  to  the  disposition  to  be  made 
of  it. 

By  John  A.  Dix,  Fehi'iiary  2&,  1835.  Warrants  for  the 
collection  of  taxes  for  school  district  purposes,  are  to  be  executed 
in  the  same  manner  as  warrants  issued  by  boards  of  supervisors 
to  town  collectors.  There  is  no  law  directing  what  appropriation 
shall  be  made  of  money  in  the  hands  of  a  town  collector  arising 
from  the  sale  of  property,  when  the  proceeds  of  the  sale  exceed 
the  amount  of  the  tax  and  the  person  to  whom  the  property  be- 
longed refuses  to  receive  the  excess.  The  statute  directs  such 
excess  to  be  paid  to  the  owner  of  the  property,  if  no  other  person 
claims  it.  But  if  any  other  person  claims  it,  it  is  to  be  paid  to 
the  supervisor  of  the  town. 

If  it  is  not  so  claimed,  and  the  owner  of  the  property  refuses 
to  accept  the  excess  aforesaid,  the  law  makes  no  provision  for  the 
government  of  the  collector.  A  tender  of  the  money  is  sufficient 
to  justify  him  in  retaining  it  in  his  hands  until  it  is  demanded. 
If  the  demand  should  be  made  by  the  owner,  you  will  be  bound 
to  pay  it  to  him.  In  the  mean  time,  you  have  nothing  to  ap- 
prehend. In  six  years  from  the  time  you  last  tendered  payment 
his  right  to  bring  an  action  will  expire  by  Umitation.  If  he 
brings  an  action  for  the  excess  of  the  proceeds  of  the  sale,  you 
can  pay  it  into  court,  and  by  pleading  and  proving  a  tender,  he 
must  pay  costs.  If  he  brings  an  action  of  trespass,  you  will 
stand  on  the  same  ground  as  you  would  if  the  money  were  not 
in  your  hands :  the  result  will  depend  on  the  sufficiency  of  the 


218  CASES    DECIDED    BY    THE 

process,  which  is  a  question  altogether  distinct  from  the  posses- 
sion of  the  money. 

The  Trustees  of  joint  school  district  No.  17  in  the 
towns  of  Catharine  and  Catlin,  ex  parte, 

A  tax  must  be  for  a  specific  object. 

A  collector  is  not  bound  to  take  any  particular  article  of  property  at  the  request 

of  the  owner  ;  but  if  he  does  so  it  will  be  an  answer  to  the  charge  of  taking 

an  excesssive  distress. 

At  the  annual  meeting  in  joint  school  district  No.  17  in  the 
towns  of  Catharine  and  Catlin,  a  tax  of  twenty  dollars  was  vot- 
ed to  purchase  fuel,  one  hundred  and  thirty  dollars  for  enlarging 
the  district  school-house,  and  five  dollars  and  fifty  cents  for  reim- 
bursing the  trustees  for  moneys  expended  by  them.  The  ques- 
tion proposed  was  whether  the  tax  was  legal. 

By  John  A.  Dix,  February  26,  1835.  The  proceedings  of 
your  annual  meeting  appear  to  be  legal  with  a  single  exception. 
The  notice  for  the  meeting  was  sufficient ;  but  there  is  an  item 
of  five  dollars  and  fifty  cents  to  reimburse  the  trustees  for  a  simi- 
lar amount  expended  by  them  over  and  above  the  amount  of 
moneys  belonging  to  the  district,  which  came  into  their  hands. 
The  right  of  inhabitants  of  school  districts  to  vote  taxes  is  restrict- 
ed to  certain  specified  objects,  and  it  should  always  appear  by  the 
proceedings  that  the  tax  is  intended  for  one  of  those  objects.  See 
sec.  61,  common  school  act,  and  decision  No.  15  of  the  Superin- 
tendent of  Common  Schools,  heretofore  published  with  the  school 
laws.*  The  reimbursement  of  moneys  expended  by  trustees  over 
and  above  their  receipts,  is  not  among  the  enumerated  objects 
for  which  a  tax  may  be  voted,  although  it  is  possible  that  the 
expenditure  may  have  been  made  for  some  authorized  purpose. 
For  instance,  if  the  amount  of  the  excess  had  been  paid  by  them' 
for  fuel,  the  inhabitants  might  have  voted  a  tax  for  fuel  to  cover 
it.  But  if  it  had  been  to  pay  the  wages  of  a  teacher,  or  for  any 
object  not  specified  in  section  61,  it  could  not  be  legally  voted. 
The  item  of  the  tax  in  question  seems  to  me  objectionable  now 
for  want  of  that  specific  designation  of  the  object  in  view,  which 
is  indispensable  to  show  that  the  inhabitants  have  not  exceeded 
their  powers.  If  an  appeal  had  been  presented  to  me  I  might 
have  prevented  difficulty,  but  without  an  appeal  I  cannot  in- 
terpose. If  the  case  were  to  be  brought  before  a  court  of  law, 
I  should  apprehend  that  the  proceedings  would  be  set  aside  on 
the  ground  above  stated.     By  reference  to  the  case  of  Baker  vs. 

*  See  the  case  of  the  trustees  of  school  district  No.  1  in  the  town  of  James- 
tow- n,  page  27. 


SUPERINTliNiJENT    OP   dOM&blf   SfeoOLS.  219 

Freeman,  9  Wendell  36,  you  will  perceive  the  supreme  court 
has,  in  effect,  decided  that  if  in  voting  a  tax  a  sum  is  included 
for  an  object  unauthorized  by  law,  the  whole  proceeding  is  viti- 
ated and  no  part  of  the  tax  can  be  collected.  The  proceedings 
in  your  case  may  now  be  abandoned,  a  special  meeting  called 
and  a  tax  voted  anew.  I  see  no  other  certain  mode  of  avoiding 
litigation,  which  will  be  vexatious  even  if  successful. 

A  collector  should  aim  to  take  property  amply  sufficient  to  sa-. 
tisfy  the  tax  to  be  paid,  and  no  more.  He  is  not  bound  to  take 
the  particular  article  of  property  offered  by  the  person  on  whorn 
the  tax  is  assessed.  For  instance,  if  a  canal  boat  is  offered,  b«p' 
may  decline  it  and  take  a  cow  or  a  dozen  sheep ;  but  if  he  wer«J 
to  take  and  sell,  at  the  request  of  the  owner,  property  worth  ten 
times  the  amount  of  the  tax,  it  would  be  an  answer  to  the  charge 
of  making  an  excessive  distress. 

Elihu  Tilden  and  others,  against  the  inhabitants  of 
school  district  No.  27  in  the  town  of  Onondaga. 

If  at  a  meeting  called  to  fix  the  site  of  a  school-house  a  reasonable  time  has  not 
been  given  for  all  the  inhabitants  to  assemble,  a  new  meeting  will  be  ordered. 

The  facts  of  this  case  are  stated  in  the  Superintendent's  or- 
der. ' 

By  John  A.  Dix,  February  26,  1835.  This  is  an  appeal  by 
certain  inhabitants  of  school  district  No.  27  in  the  town  of  On- 
ondaga, from  the  proceedings  of  a  special  meeting  held  on  he 
5th  of  February  instant,  at  which  the  site  of  the  school-house 
was  fixed. 

It  is  alleged  by  the  appellants  that  the  site  has  been  fixed  at 
an  inconvenient  place,  and  that  several  of  the  inhabitants  of  the 
district  were  deprived  of  the  opportunity  of  voting  by  the  refusal 
of  those  who  were  assembled  at  the  hour  appointed  for  the  meet- 
ing to  wait  a  short  time  for  others,  who  were  expected,  before  they 
proceeded  to  business.  In  the  answer  to  the  appeal  it  is  alleged 
that  there  was  a  majority  of  the  inhabitants  residing  in  the  dis- 
trict present  at  the  time  the  site  was  fixed ;  but  the  allegation  with 
regard  to  the  refusal  of  those  present  to  wait  for  others  who  wish- 
ed to  have  an  opportunity  of  voting,  is  not  negatived  by  the  re- 
spondents. 

There  is  no  matter  more  deeply  affecting  the  interests  of  a 
school  district  than  the  act  of  fixing  a  site  for  the  school-house. 
So  long  as  a  district  remains  unaltered  the  site  cannot  be  chang- 
ed, when  the  school-house  has  been  built  or  purchased,  but  upon 
conditions,  which  almost  always  interpose  an  insuperable  ol^ta- 
cle  to  such  change.  It  is  of  the  utmost  importance,  therefore,  that 
the  wishes  of  all  the  inhabitants  should  be  clearly  ascertained, 


m^ 


320  ^Htfi^AaES    DECIDED   BY   TH£ 


and  that  every  opportunity  which  can  be  desired  should  be  afford- 
ed for  comparing  their  views.     Deliberation,  and  a  full  and  fair 
expression  of  opinion  should  be  secured  before  a  decision,  whicl^' 
it  is  extremely  difficult  to  reverse,. is  pronounced.  *  4t 

Under  the  circumstances  of  the  case,  and  under  the  influence* 
of  the  considerations  above  mentioned,  the  Superintendent  is  of 
opinion  that  the  matter  in  dispute  should  again  be  presented 
for  the  determination  of  the  inhabitants.  ^' 

It  is,  therefore,  ordered,  that  the  proceedings  of  the  meeting 
aforesaid,  held  on  the  5th  instant,  be  and  they  are  hereby  set 
aside.  And  it  is  further  ordered,  that  the  trustees  of  school  dis- 
trict No.  27  proceed  forthwith  to  call  a  special  meeting  of  the 
inhabitants  for  the  purpose  of  fixing  a  site  for  a  school-house, 
specifying  in  the  notice  the  ol^ect  of  the  meeting,  and  that  it  is 
called  by  the  direction  of  the  Superintendent  of  Common 
Schools,  ^• 

The  inhabitants  of  school  district  No  2  in  the  town 
of  Stamfordy.  and  of  joint  district  No.  12  in  Stam- 
ford and  Harpersfield,  against  the  Commissioners 

t;  of  Common  Schools  of  said  towns. 

School  dJstricta  should  not  be  formed  with  less  than  forty  children  between  five 
and  sixteen  years  of  age. 

Th«  facts  of  this  case  are  stated  in  the  Superintendent's  or- 
der. 

By  John  A.  Dix,  February  27,  1835.  The  Superintendent 
of  common  schools  has  carefully  examined  the  appeal  of  certain 
inhabitants  of  school  district  No.  2  in  Stamford,  and  of  school 
district  No.  12  lying  partly  in  said  town  and  partly  in  the  town 
of  Harpersfield ;  and  also  the  answer  of  the  commissioners  of 
common  schools  of  said  towns,  and  the  papers  submitted  by  the 
inhabitants  of  a  new  school  district  form^  out  of  the  two  dis- 
tricts before  mentioned  and  No.  4  in  Stamford,  said  appeal  hav 
ing  been  brought  from  the  proceedings  of  the  commissioners  in 
forming  the  new  district  aforesaid. 

The  Superintendent  is  well  aware  that  the  commissioners 
have  acted  in  this  case  with  a  sincere  desire  to  promote  the  inte- 
rest of  all  concerned  and  to  advance  the  cause  of  education ;  and 
he  regrets  that  he  is  compelled  from  regard  to  principles,  which 
can  rarely  be  departed  from  with  safety,  to  set  aside  their  pro- 
ceedings. The  commissioners  have  not  perhaps  had  so  frequent 
occasion  as  the  Superintendent  to  remark,  that  almost  all  the  ex- 
isting evils  of  the  common  school  system  have  their  origin  in  the 
limited  means  of  the  school  districts.     The  tendency  is  to  sub- 


8ITPERINTENDENT    OF    COMMON    SCHOOLS.  221 

division  and  to  a  contraction  of  their  territorial  boundaries.  This 
consequence  must  follow  in  some  degree  from  the  increase  of  po- 
pulation; but  the  subdivision  of  school  districts  tends  to  advance 
in  a  much  greater  ratio.  The  average  number  of  cliildren  in 
our  school  districts  is  about  fifty-five.  No  school  district  should 
number  less  than  forty  children  between  five  and  sixteen  years  of 
age.  From  the  observations  he  has  made  the  Superintendent 
deems  it  due  to  the  common  school  system,  that  no  new  district 
shall  be  formed  with  a  much  smaller  number,  unless  peculiar 
circumstances  render  it  proper  to  make  it  an  exception  to  the  ge- 
neral rule.  In  feeble  districts  cheap  instructors,  poor  and  ill  fur- 
nished school-houses,  and  a  general  languor  of  the  cause  of  edu- 
cation, are  almost  certain  to  be  found. 

In  the  case  under  consideration  a  district  is  formed  with  a  tax- 
able property  of  about  eight  thousand  dollars,  and  children  va- 
riously staled  from  twenty-two  to  thirt}'  in  number.  One  of  the 
districts,  (No.  12,)  out  of  which  the  new  distiict  is  formed,  is  re- 
duced from  53  children  between  5  and  16  years  of  age  to  38; 
and  district  No.  2  is  reduced  from  40  to  33.  District  No.  4  is 
not  injuriously  affected  by  the  alteration.  But  the  Superinten- 
dent does  not  perceive  that  he  can,  consistently  with  the  rule  al- 
ready suggested,  sanction  the  formation  of  a  new  district  unless  the 
accommodation  of  the  inhabitants  renders  it  indipensable,  when 
the  consequence  is  to  reduce  two  existing  districts  below  the  pro- 
per standard,  and  create  another  which,  both  in  point  of  property 
and  children,  is  also  far  below  the  average  ability  of  the  school 
districts  throughout  the  state.  There  is  nothing  in  the  local  situ- 
ation of  the  territory  taken  to  form  the  new  district  which  ren- 
ders the  creation  of  another  district  necessary.  The  school-houses 
in  the  adjacent  districts  are  near,  and,  with  the  exception  of  dis- 
trict No.  4,  the  schools  cannot  be  so  crowded  as  to  be  inconvenient. 
The  number  of  scholars  reported  as  having  received  instruction 
during  the  year  1834  in  district  No.  2  is  62,  and  in  district  No.  12 
the  number  reported  is  59;  but  it  by  no  means  follows  that  the 
whole  number  in  either  case  was  receiving  instruction  at  the 
same  time.  The  whole  number  of  scholars  reported  in  the  new 
district  is  but  32,  whereas  the  number  of  children  between  5  and 
16  years  of  age  is  somewhat  less. 

The  erection  of*  school-house  b}'  a  part  of  the  inhabitants  of 
a  district  at  their  own  expense  ought  not  to  be  allowed  to  in- 
fluence the  commissioners  in  forming  them  into  a  new  district. 
Should  such  a  rule  be  adopted,  a  few  persons  would  always  have 
it,jn  their  power  to  break  up  the  district.  The  only  questions 
are  whether  the  parties  interested  are  so  inconviently  situated  as 
to  need  a  separate  organization,  and  whether  they  can  be  so  or- 


^1^' 


222  flB^x^i  CASES    DECIDED   BY    THE 


ganized  without  doing  injustice  toothers  and  prejudicing  the  in- 
terests of  education. 

Tlie  Superintendent  regrets  that  he  is  constrained  to  differ  in 
opinion  with  the  commissioners  of  common  schools;  but  after 
full  consideration  he  deems  it  his  duty  to  set  aside  their  proceed- 
ings. 

It  is  therefore  ordered,  that  the  new  district,  formed  as  afore- 
said out  of  districts  No.  2,  4  and  12,  be,  and  it  is  hereby  annulled. 

The  Trustees  of  school  district  No. in  the  town 

of  Huntington,  ex  parte,  ^ 

Trustees  cannot  levy  a  tax  without  a  vote  of  the  district. 

Trustees  being  authorized  by  a  vote  of  the  district  to  do  any  act  involving  an  ex- 
penditure of  money,  must  be  indemnified  by  the  district. 

In  this  case  a  vote  was  passed  at  a  district  meeting  to  take 
down  the  school-house  and  put  it  up  at  a  different  place,  the  site 
having  been  legally  changed.  No  tax  was  voted  to  pay  the  ex- 
pense of  removal.  After  the  house  was  removed,  the  inhabitants 
of  the  district  refused  to  vote  a  tax  to  cover  the  expenditures  of 
the  trustees.  The  question  proposed  was  whether  the  trustees 
could  levy  the  necessary  sum  for  the  purpose,  without  a  vote  of 
the  inhabitants,  and  if  not,  what  was  the  proper  remedy. 

By  John  A.  Dix,  March  5,  1835.  The  trustees  of  a  dis- 
trict have  no  right  to  make  out  a  tax  list  and  levy  a  tax,  unless 
the  inhabitants  vote  a  specific  sum  so  to  be  levied.  The  com- 
munication heretofore  made  by  me  on  this  subject  presumed  that 
such  a  tax  would  be  voted  by  the  inhabitants;  and  I  said,  that 
in  case  of  their  refusal  to  vote  it,  I  should  consider  it  my  duty  to 
direct  to  be  levied  on  the  property  of  the  district  a  sum  sufficient 
to  cover  any  expenditures  which  may  have  been  incurred  in 
pursuance  of  a  vote  of  the  inhabitants  to  remove  or  repair  the 
house.  If  trustees  undertake  to  remove  a  school-house,  buy  a 
lot  for  a  site,  or  do  any  other  act  which  they  aie  not  by  law  au- 
thorized to  do  without  a  vote  of  the  inhabitants  of  the  district,  it 
is  at  their  own  peril.  The  inhabitants  may  ratify  their  pro- 
ceedings by  a  subsequent  vote;  but  if  they  do  not  choose  to  do 
so,  the  trustees  are  without  remedy.  I  have,  however,  uniform- 
ly directed,  where  the  inhabitants  of  a  school  district  have,  by  a 
vote  to  that  effect,  authorized  their  trustees  to  go  on  and  make 
repairs,  or  do  any  other  lawful  acts  involving  an  expenditure  of 
money,  that  the  districts  should  save  the  trustees  harmless,  if 
the  latter  have  acted  in  good  faith.  The  inhabitants  may  al- 
ways limit  an  expenditure  in  contemplation  by  voting  a  specific 
sum  for  the  purpose:  they  should  always  do  so;  but  if  they 
neglect  it,  and  give  a  general  direction  to  the  trustees  to  go  on 


^  SUPERINTENDENT    OF    COMMON    SCHOOLS.  223 

and  make  repairs,  or  do  any  other  act  authorized  by  law,  with- 
out Hmiting  the  amount  to  be  expended,  I  shall  always  deem  it 
my  duty,  in  case  the  inhabitants  refuse,  after  the  work  is  done, 
to  vote  an  amount  sufficient  to  cover  the  expenditure,  to  direct 
^  such  amount  to  be  levied,  on  receiving  proof  that  it  is  no  more 
than  has  been  reasonably  expended.*  But  the  trustees  cannot, 
without  a  vote  of  the  district,  or  without  an  order  from  the  Su- 
perintendent, levy  a  tax  on  a  district,  excepting  in  the  special 
manner  provided  by  law  in  case  of  a  division  of  a  school  district, 
where  the  property  of  the  district  is  to  be  divided,  and  has  for  that 
purpose  been  appraised  by  the  commissioners  of  common  schools. 

The  Trustees  of  school  district  No. in  the  town 

of  Patterson,  ex  parte. 

If  the  cleric  gives  a  verbal  notice  for  a  special  meeting  to  part  of  the  inhabitants 
and  a  written  notice  to  the  residue,  the  proceedings  are  not  void,  but  may  be 
set  aside  on  showing  cause. 

In  this  case  the  clerk  of  school  district  No. in  the  town 

of  Patterson,  commenced  giving  verbal  notices  for  a  district  meet- 
ing, but  after  having  notified  a  few  persons  he  served  a  written 
notice  on  the  residue  of  the  inhabitants  of  the  district,  as  requir- 
ed by  law.  The  question  submitted  was  whether  the  proceed- 
ings of  the  meeting  held  in  pursuance  of  such  a  notice  were  le- 
gal? 

By  John  A.  Dix,  March  6,  1835.  If  the  clerk  of  a  school 
district  warns  a  few  of  the  inhabitants  verbally  to  attend  a  meet- 
ing and  afterwards  notifies  the  residue  by  a  written  notice  as  re- 
quired by  law,  the  proceedings  may  not  be  void,  but  may  be  set 
aside  on  showing  cause.  I  have  always  held  that  the  inhabi- 
^  tants  of  a  school  district,  coming  together  without  any  attempt 
on  the  part  of  the  clerk  or  trustees  to  give  a  legal  notice,  could 
not  act;  their  proceedings  would  be  void,  as  they  would  not  be 
legally  assembled.  But  if  some  of  the  inhabitants  l>ave  been 
notified  as  required  by  law,  and  the  notice  is  defective  as  to  the 
others,  the  proceedings  are  not  void,  but  voidable  on  showing 
sufficient  cause  to  the  Superintendent.  It  may  be  m  the  case 
referred  to  by  you  that  the  persons  who  received  a  verbal  notice 
were  present  at  the  meeting.  If  so,  I  would  not  allow  them  to 
object  to  the  insufficiency  of"  the  notice.  It  may  be  that  they 
were  all  present  but  one  or  two:  in  this  case  I  should  not  disturb 
the  proceedings,  unless  the  omission  to  give  the  proper  notice  was 
wilful  and  fraudulent.     There  are  many  circumstances  to  be 

•  See  the  case  of  the  trustees  of  school  district  No.  30  in  the  town  of  Johns- 
town, againtt  the  inhabitants  of  said  town,  page  161. 


224  CASES    DECIDED    BY   THE 

taken  into  consideration  in  such  cases,  in  coming  to  a  decision: 
and,  therefore,  it  is  impossible  to  give  to  the  general  proposition 
contained  in  your  letter  an  answer  which  would  be  applicable  to 
every  case.  The  clerk  should  undoubtedly,  when  he  received  the 
written  order  referred  to,  have  retraced  his  steps  and  given  every 
'  voter  a  written  notice,  by  reading  it  to  him  or  leaving  a  copy ; 
and  yet  the  reasons  in  favor  of  setting  aside  the  proceedings  may 
not  be  strong  enough  to  justify  such  a  measure. 

The  Trustees  of  school  district  No.  7  in  the  tovi^n  of 
Philadelphia,  ex  parte. 

A  minister  of  the  gospel,  being,  a  freeholder,  may  Tote  at  school  district 
meetings. 

The  following  question  wa.s  proposed  for  the  Superintendent's 
opinion: 

Has  a  minister  of  the  gospel,  residing  in  a  school  district  and 
owning  property  therein,  but  not  to  the  amount  for  which  min- 
isters of  the  gospel  are  exempt  by  law  from  taxation,  a  right  to 
vote  at  a  meeting  of  the  inhabitants  of  the  district? 

By  John  A.  Dix,  March  6,  1835.  A  minister  of  the  gospel 
if  he  is  "a  freeholder  in  the  town,"  altliough  his  freehold  may 
not  be  equal  in  value  to  the  amount  exempt  from  taxation,  may 
vote  at  the  meetings  of  the  school  district  in  which  he  resides. 
But  if  he  is  not  a  "freeholder  in  the  town,"  and  if  his  property 
is  all  personal,  he  cannot  vote,  for  his  personal  property  being 
wholly  exempt  from  taxation  under  the  general  provision  rela 
tive  to  the  assessment  of  taxes,  is  not  "  liable  to  taxation  in  the 
district ;"  nor  is  he  liable  to  be  assessed  to  work  on  the  highway, 
as  there  is  a  special  exemption  in  his  favor.  See  1  R.  S.  sec.  24, 
page  506,  If  he  has  been  assessed  to  pay  taxes  in  the  town  dur- 
ing the  present  or  the  preceding  year,  he  may  voie ;  but  I  infer 
from  your  inquiry  that  he  is  not  liable  to  taxation  at  all. 

The  whole  question,  therefore,  turns  on  his  being  "  a  free- 
.  holder  in  the  town."    If  he  is,  he  can  vote ;  if  not,  he  cannot 
vote  without  incurring  a  penalty  of  ten  dollars. 

The  Commissioners  of  Common  Schools  of  the  town 
of  Georgetown,  ex  parte. 

If  one  district  is  united  to  another,  the  public  money  belonging  to  either  must 
be  applied  for  the  common  benefit  of  all. 

In  consequence  of  a  dispute  as  to  the  boundaries  of  school  dis- 
tricts No.  2  and  8  in  the  town  of  Georgetown,  a  small  balance 
of  the  public  moneys  distributed  in  April,  1834,  was  retained  by 
the  commissioners  of  common  schools.     Near  the  close  of  the 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  225 

year  1834,  di^rict  Na  2  was  annexed  to  No.  8,  and  after  their 
union  the  balance  so  retained  was  adjudged  to  belong  to  the 
former.  The  question  proposed  was  whether  it  could  be  applied 
exclusively  for  the  benefit  of  the  individuals  formerly  belonging 
to  that  district,  or  whether  the  whole  united  district  should  par- 
ticipate in  its  apfdication. 

By  John  A.  Dix,  March  9, 1835.  The  propriety  of  paying 
over  to  the  trustees  of  late  district  No.  2  the  small  balance  of 
public  money  in  your  hands  which  was  appropriated  to  that  dis- 
trict, must,  it  seems  to  me,  depend  on  a  single  circumstance. 
The  district  is  now  united  to  another.  If  the  money  is  paid  to 
the  trustees  of  late  district  No.  2,  have  they  authority  to  make  a 
lawful  disposition  of  it?  Certainly  not,  unless  they  are  bound, 
as  former  trustees  of  the  district,  to  [jay  the  wages  of  a  qualified 
teacher,  under  a  contract  which  has  been  fulfilled  on  his  part. 
If  they  employed  a  teacher,  and  he  is  entitled  to  a  balance  for' 
teaching,  and  has  received  a  certificate  from  the  inspectois  in  the 
tx)wn,  then  the  public  money  ought  to  be  paid  to  the  trustees  for 
the  discharge  of  that  balance,  as  far  as  it  will  go.  But  if  there 
is  no  such  balance  due,  the  money  should  be  paid  to  the  trustees 
of  district  No.  8,  and  appropriated  to  the  benefit  of  the  whole 
district.  There  is  no  law  by  which  the  moneys  derived  from 
the  common  school  fund  can  be  applied  to  the  benefit  of  a  part 
of  a  school  district,  and  it  is  only  as  an  independent  district  that 
the  inhabitants  of  No.  2  could  be  exclusively  benefited  by  the 
money.  From  the  moment,  therefore,  that  they  were  united  to 
another  district  the  public  money  belonging  to  No.  2  became  ap- 
plicable to  the  benefit  of  the  united  district,  to  be  expended  as 
the  law  directs,  unless  there  was  a  balance  due  a  qualified  teach- 
er in  No.  2.  In  that  case  the  inhabitants  of  No,  2  might  be  ex- 
clusively benefited  by  the  application  of  the  balance  in  your 
hands  to  the  discharge  of  the  debt. 

Francis  Clarke,  against  the  Trustees  of  joint  school 
district  No.  12  m  the  towns  of  Shelby  and  Ridge- 
way. 

Trustees,  in  making  out  a  tax  list,  are  bound  to  know  who  are  and  who  are  not 

taxable  inhabitants  of  the  district. 
The  last  assessment  roll  of  the  town  is  the  proper  guide  to  trustees  in  making 

out  a  tax  list  as  to  the  valuation  of  properfy,  but  not  as  to  ownership. 

The  appellant  was  an  inhabitant  of  that  part  of  joint  school 
district  No.  12  in  the  towns  of  Shelby  and  Ridgeway  which  was 
included  within  the  boundaries  of  the  latter  town.  On  the  Ist 
of  September,  1834.  he  disposed  of  his  stock  in  trade,  and  remov- 
ed with  his  family,  on  the  19th  of  October  ensuing,  to  the  city 

15 


226  CASES   DECIDED    BY   THE 

of  Now- York,  with  the  intention  of  making  it  his  place  of  resi- 
dence. On  the  16th  of  December  he  returned  to  Ridge  way  to 
clo  '6  his  unsettled  business,  and  remained  there  nine  days,  and 
he  again  returned  to  Ridgeway  in  February  for  a  few  days. 
On  the  27th  of  January  a  tax  was  laid  in  district  No.  12  to 
build  a  school-house,  and  he  was  included,  in  the  tax  list  as  an 
inhabitant  of  the  district.  The  questions  proposed  were,  whe- 
ther he  could  be  taxed  as  such  on  his  personal  property,  and 
whether  he  could  be  taxed  for  several  lots  of  land  in  the  district, 
which  he  had  sold  since  the  last  assessment  roll  of  the  town  was 
made  out  ? 

By  John  A.  Dix,  March  10,  1835.  This  is  a  case  submit- 
ted by  Francis  Clarke  and  the  trustees  of  joint  district  No.  12  in 
the  towns  of  Shelby  and  Ridgeway,  in  relation  to  the  assessment 
of  the  former  to  pay  a  tax  for  building  a  school-house  in  said 
district. 

The  statement  contained  in  the  affidavit  of  Francis  Clarke, 
which  affidavit  is  referred  to  in  the  statement  signed  by  him  and 
the  trustees,  and  is  not  disputed  by  the  latter,  is  conclusive  as  to 
the  fact  that  he  was  not,  at  the  time  the  tax  list  was  made  out, 
a  resident  of  the  district.  So  far,  therefore,  as  the  assessment 
of  his  personal  property  is  concerned,  he  was  not  lawfully  in- 
eluded  in  the  tax  list,  which  could  only  embrace  "the  taxable 
inhabitants  residing  in  the  district  at  the  time  of  making  out  the 
list."  He  might  be  included  in  it  as  a  non-resident  owner  of 
property,  and  was  therefore  justly  taxable  for  all  the  cleared  and 
cultivated  lots  of  which  he  was  the  owner  at  the  time  the  tax  list 
was  made  out. 

The  trustees  were  bound  to  know  who  were  and  who  were 
not  taxable  inhabitants  of  the  district,  and  they  were  also  bound 
to  know  who  were  and  who  were  not  owners  of  property  withia 
the  district.  The  last  assessment  roll  of  the  town  W8ks  their  pro- 
per guide  only  as  to  the  valuation  of  the  property,  and  not  as  to 
the  ownership.  Mr.  Clarke  swears  that  he  was  at  the  time  the 
tax  was  made  out  the  owner  of  lots  No.  15, 16  and  83  only,  and 
that  the  valuation  of  said  lots,  according  to  the  last  assessment 
roll  of  the  town,  was  f  1500.  On  those  lots  an  exemption  is  not 
daimed. 

It  is  hereby  decided,  that  Mr.  Clarke  be  released  from  the  tax 
on  all  his  personal  property,  and  that  he  be  taxed  on  $1500,  the 
value  of  the  real  estate  possessed  by  him  at  the  time  the  tax  list 
was  made  out.  The  circumstances  connected  with  the  removal 
of  Mr.  Clarke  were  such  tlmt  a  difference  of  opinion  with  regard' 
to  his  residence  m^ht  well  be  entertained,  and  as  the  trustees 
have  acted  in  good  faith,  it  is  further  ordered  that  they  be, 
and  they  are  hereby  authorized  to  assess  upon  the  owners  of 


SUPERINTENDENT   OF    COMMON    SCHOOLS.  227 

lots  No.  25,  33,  42,  77,  272,  274  and  275,  so  much  of  Mr. 
Clarke's  tax  as  was  assessed  to  him  on  account  of  those  lots,  and 
to  reassess  the  deficiency  upon  the  whole  taxable  property  of  the 
district.* 

The  Clerk  of  school  district  No.  23  in  the  town  of 
Orleans,  ex  parte. 

If  an  alteration  is  made  in  a  school-district,  without  the  consent  of  the  trustees, 
and  without  the  knowledge  of  the  parties  interested,  an  appeal  to  tlie  Super- 
intendent will  be  allowed  after  three  months. 

la  this  case  it  was  alleged  that  the  commissioners  of  com- 
mon schools  had  made  an  alteration  in  school  district  No.  23, 
and  given  a  notice  to  one  of  the  trustees,  who  was  desirous  that 
the  alteration  should  take  place,  and  who  concealed  his  know- 
ledge of  it  from  his  associate  trustees  and  from  the  parties  im- 
mediately interested,  until  after  the  expiration  of  three  months. 

By  John  A.  Dix,  March  12,  1835.  The  question  submit- 
ted to  me  is,  whether  an  appeal  will  be  allowed  where  a  new 
district  has  been  formed  by  the  commissioners  of  common 
schools,  and  a  notice  in  writing  read  to  one  of  the  trustees  of  a 
district,  from  which  such  new  district  has  been  partly  taken,  and 
the  trustee,  to  whom  the  notice  was  so  read,  refused  or  neglected 
to  give  notice  to  the  other  trustees  of  the  district  until  after  the 
expiration  of  three  months,  and  neither  the  inhabitants,  nor  the 
two  trustees  last  referred  to,  had  any  knowledge  that  such  al- 
teration was  contemplated. 

In  such  a  case  I  should  certainly  allow  an  appeal  The  par- 
ties interested  should  be  apprized  of  the  proposed  alteration  ;  and 
if  notice  has  not  been  given,  or  if  the  person  to  whom  it  is  giv- 
en, has  intentionally  withheld  it  from  others,  who  would  have 
availed  themselves  of  it  to  resist  the  measure  in  contemplation, 

•  In  the  case  of  Easton  and  others  vs.  Calendar,  11  Wendell  90,  the  Supreme 
Court  held  that  the  trustees  of  a  school  district  were  not  answerable  as  trespassers 
in  omitting  to  insert  the  names  of  all  the  taxable  inhabitants  in  a  tax  list,  the  omis- 
sion being  an  error  in  judgment,  and  there  being  no  evidence  of  bad  faith.  The 
court  also  said,  '*  The  plaintiff  below  was  not  without  his  remedy,  1  R.  S.  487, 
§  110,  111,  and  the  amendment  of  the  law,  26th  April,  1836,  provides  that  any 
person  conceiving  himself  aggrieved  in  consequence  of  any  decision  made  by  the 
trustees  of  any  district,  in  paying  any  teacher,  or  concerning  any  other  matter, 
under  the  present  titie,  (which  includes  the  whole  of  the  school  act,)  may  ap- 
peal to  the  Superintendent  of  Common  Schools,  whose  decision  shall  be  final. 
This  provision  was  intended  for  what  it  practically  is,  a  cheap  and  expeditious 
mode  of  settling  most,  if  not  all  of  the  difficulties  and  disputes  arising  in  the 
course  of  the  execution  of  the  law.  A  common  law  certiorari  would  no  doubt 
lie  from  this  court,  to  the  trustees  to  bring  up  and  correct  any  erroneous  pro- 
ceeding not  concluded  by  an  adjudication  of  the  Superintendent,  or  in  a  case 
where  his  powejs  were  inadequate  to  give  the  rdief  to  which  the  party  was  en- 
titled.** ... 


228  " ''        CASES    DECIDED    BY   THE       "••        - 

and  the  latter  have  no  knowledge  of  it,  I  should  deem  it  due  to 
every  consideration  of  equity  to  allow  the  parties  aggrieved  to 
come  in  and  show  cause  why  tl>e  proceeding  complained  of 
should  be  set  aside. 

(anonymous.) 

A  tax  cannot  be  voted  to  buy  a  record  book  for  a  school  district.  (But  see  note.) 
In  voting  a  tax  to  purchase  a  site,  a  sufficient  sum  majbe  included  to  pay  for 
recording  the  deed. 

By  John  A.  Dix,  March  18,  1835.  No  authority  is  given 
by  the  statute  to  the  inhabitants  of  a  school  district  to  vote  a  tax 
to  buy  a  record  book  for  the  use  of  the  district.*  The  intention 
was  that  such  a  book  should  be  provided,  but  it  was  not  includ- 
ed in  the  enimieration  of  the  objects  for  which  a  tax  may  hv 
voted. 

When  a  tax  is  voted  to  purchase  a  site  for  a  school-house, 
a  sufficient  sum  may  be  included  in  it  to  pay  for  recording  the 
deed:  for  this  is  necessary  to  perfect  the  title,  and  it  is,  therefore 
a  part  of  the  expense  of  procuring  the  site. 

The  Commissioners  of  Common  Schools  of  the  town 
of  Norwich,  ex  parte. 

The  funds  arising  from  the  gospel  and  school  lots  belonging  to  the  twenty  town- 
*  ships  on  the  Unadilla  river  are  to  be  applied  exclusively  to  the  benefit  of  the 

inhabitants  of  such  townships. 
None  but  inhabitants  of  the  township  can  participate  in  the  election  of  a  town 

agent,  or  in  directing  the  application  to  be  made  of  tlie  funds  arising  from  thi* 

gospel  and  school  lots. 

In  this  case  the  direction  of  the  Superintendent  was  requested 
as  to  the  proper  couise  to  be  pursued,  the  inhabitants  of  township 
No.  15,  one  of  the  twenty  townships  on  the  Unadilla  river,  and 
constituting  part  of  the  town  of  Norwich,  having  failed  to  elect 
an  agent  for  said  township,  in  the  manner  required  by  law. — 
ilc  was  also  desired  to  state  in  what  manner  the  proceeds  of  the 
funds  arising  from  the  gospel  and  school  lots  were  to  be  applied. 

By  John  A.  Dix,  March  26,  1835.  The  gospel  and  school 
lots  belonging  to  the  twenty  townships  on  the  Unadilla  river, 
were  set  apart  for  the  benefit  of  the  inhabitants  of  those  town- 
ships. The  act  of  13th  April,  1819,  Laws  of  N.  Y.  42d  ses- 
sion, chapter  224,  makes  a  special  provision  for  the  manage- 
ment and  appropriation  of  the  funds  derived  from  the  lots  be- 

•  By  an  act  passed  the  22d  April,  1837,  the  inhabitants  of  school  districts  are 
authorized  to  vole  a  tax  for  the  purpose  of  purchasing  a  book  to  record  their 
proceedings.  This  provision  was  made  to  remedy  the  defect  in  the  law,  to 
which  the  above  decision  refers. 


4* 


■» 


SUPERINTENDENT    OF    COMMON   SCHOOLS.  229 

longing  to  the  1 0th  and  15th  townships.  This  act  was  not  re- 
vised ;  see  page  655,  3  R.  S.  but  continues  in  full  force.  By  the 
fourtli  section  of  the  act  the  interest  arising  from  the  moneys  de- 
rived from  the  sale  of  lots  belonging  to  either  of  the  townships 
is  to  be  applied  to  the  support  of  common  schools  "  in  such  man- 
ner as  the  inhabitants  of  such  township"  or  a  majority  of  them 
shall  direct 

The  second  and  third  sections  of  the  act,  direct  the  manner 
of  proceeding  in  the  appointment  of  a  town  agent.  The  in- 
habitants of  the  10th  township  are  required  to  meet  annually 
(until  the  township  shall  be  erected  into  a  separate  town)  on  the 
lirst  Tuesday  of  June,  and  elect  an  agent  for  said  township. — 
There  is  no  authority  to  proceed  in  any  other  manner,  nor 
would  any  proceedings  in  contravention  of  these  provisions  have 
any  validity  whatever.  The  4th  title  of  chap.  15,  part  1,  R.  S. 
has  no  application  to  this  case.  By  the  note  of  the  Revisers  at 
the  bottom  of  page  499,  1  R.  S.  it  appears  that  this  title  was 
«^mpiled  from  laws  which  had  no  reference  to  the  townships  in 
(juestion,  as  may  be  seen  by  an  examination  of  those  laws.  It 
will,  therefore,  be  the  duty  of  the  inhabitants  of  the  10th  town- 
ship to  meet  on  the  1st  Tuesday  of  June  next,  elect  an  agent, 
and  vote  what  disposition  shall  be  made  of  the  interest  arising 
froni  the  sale  of  lots  belonging  to  said  township. 

The  inhabitants  of  the  15th  township  should  have  met  en 
the  day  of  the  annual  town  meeting  for  the  town  of  Norwich, 
separate  and  apart  from  the  other  inhabitants  of  that  town, 
elected  an  agent,  and  voted  what  application  should  be  made 
of  the  interest  arising  from  the  sale  of  the  lots  belonging  to 
tlie  15th  township.  If  they  have  not  done  so,  I  see  no  alter- 
native but  for  the  agent  elected  last  year  to  hold  over  and  apply 
the  moneys,  which  may  come  into  his  hands,  as  he  did  last  year. 
The  directions  of  the  inhabitants  as  to  the  application  of  the 
moneys,  whenever  those  directions  are  given  in  the  manner 
specified  in  the  act  of  13th  April,  1819,  are  binding  and  must 
be  carried  into  effect-  But  none  but  the  inhabitants  of  the  town- 
ship (not  the  inhabitants  of  the  town  of  which  the  township  is 
a  part)  can  participate  in  the  proceedings. 

The  Trustees  of  a  separate  neighborhood  in  the  town 
of  Southport,  ex  parte. 

Children  residing  in  other  states  when  attending  schools  in  separate  neighbor- 
hoods within  this  state  cannot  share  the  pubhc  moneys. 

In  this  case  children  from  the  state  of  Pennsylvania  had  at- 
tended school  in  a  separate  neighborhood  in  the  state  of  New- 
York,  and  the  question  proposed  was  whether  the  children  so 


•;/ 


m 


230  '♦JOC         CASES    DECIDED    BY   THE 

attending  school  could  share  the  public  moneys  derived  from  the 
New-Yoik  school  fund. 

By  John  A.  Dix,  March  31^  1835.  Children  residing  in 
other  states  and  admitted  to  schools  within  this  state  cannot  par- 
ticipate in  the  distribution  of  the  school  moneys.  Subdi\ision  2, 
of  section  2Q,  page  470,  1  R.  S.  authorizes  the  establishment  of 
separate  neighbourhoods  where  it  is  convenient  to  unite  with  the 
inhabitants  of  an  adjoining  state  for  the  support  of  a  school : 
But  by  the  25th  section  of  the  same  title,  the  public  moneys  are 
required  to  be  faithfully  applied  for  the  instruction  of  children 
residing  in  such  neighbourhood.  These  provisions  are  so  clear 
in  their  language  that  no  doubt  can  exist  as  to  their  intention. 

(anonymous.) 

Trustees,  gijardians,  executors  and  administrators,  are  taxable  in  their  represen- 
tative character  where  they  reside  for  personal  property  in  their  possession, 
whether  the  real  parties  in  interest  are  benefited  by  the  expenditure  of  the 
■  -    tax  or  not. 

By  John  A.  Dix,  April  2,  1835.  Trustees,  guardians,  exe- 
cutors and  administrators,  are  taxable  for  all  personal  estate  in 
their  possession,  or  under  their  control,  in  the  town  or  ward  where 
they  reside.  See  1  R.  S.  p.  389,  sec.  5.  I  have  decided  that  the 
same  principle  applies  to  school  districts.*  The  personal  proper- 
t)'^  so  possessed  or  controlled  is  taxable  in  the  district  in  which  the 
trustee,  guardian,  executor  or  administrator  resides.  Under  sec- 
tion 10,  same  vol.  page  391,  a  deduction  is  to  be  made  by  the 
assessors  for  debts  due  from  the  individual  assessed  in  his  repre- 
sentative character.  The  debts  referred  to  in  the  section  last 
mentioned,  aie  such  as  are  specified  in  section  27,  2  R.  S.  page 
87. 

The  question  whether  the  real  owners  of  the  property  are  di- 
rectly benefited  by  the  expenditure  of  the  tax  assessed  upon  it, 
does  not  appear  to  have  been  one  of  the  considerations  in  ^^ew 
of  the  provisions  referred  to,  for  it  is  manifest  that  the  personal 
property  in  the  hands  of  a  trustee,  guardian,  &c.,  in  Buffalo, 
is  liable  to  be  taxed  there,  although  the  real  parties  in  interest 
may  live  in  Albany. 

After  the  administration  of  an  estate  in  the  hands  of  aji  exe- 
cutor or  administrator,  upon  the  rendition  and  settlement  of  a 
final  account  of  his  pioceedings,  the  personal  property  is,  of 
course,  not  liable  to  taxation  where  he  resides ;  but  so  long  as  it 
is  in  his  possession  or  under  his  control,  it  is  so  liable  as  before 
mentioned.   In  this  case  a  reduction  may  be  claimed  from  the  last 

*  See  the  case  of  the  trustees  of  school  district  No.  S  in  the  town  of  Rensse- 
taerviUe,  page  167.  : ! ...  • 


T      T 


A-' 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  231 

assessment  roll  of  the  town  under  the  provisions  of  section  79, 
page  482,  1  R.  S. 

The  Commissioners  of  Common  Schools  of  the  town 
of  Windham,  ex  parte. 

A  minister  of  the  gospel  cannot  be  an  inspector  of  common  schools. 

At  the  annual  town  meeting  in  the  town  of  Windham  in  the 
year  1835,  three  clergymen  were  elected  inspectors  of  common 
schools.  The  Superintendent  was  requested  to  state  whether 
they  were  elegible  to  the  office  to  which  they  had  been  elected, 
and  whether  the  town  would  in  that  case  forfeit  its  right  to  a 
share  of  the  public  money. 

By  John  A.  Dix,  April  13,  1835.  By  the  constitution  of 
this  state,  art.  7,  sec.  4,  no  minister  of  the  gospel  or  priest  of 
any  denomination  whatsoever,  is  capable  of  holding  "  any  civil 
or  military  office  or  place  within  this  state."  This  exclusion 
clearly  extends  to  town  officers :  they  are  pnhlic  officers  with  au- 
thority by  law  to  execute  certain  civil  functions. 

An  inspector  of  common  schools  is  a  town  officer,  and  the  in- 
habitants of  your  town  having  appointed  to  that  office  persons 
hot  eligible,  the  case  occurs  in  which  three  justices  of  the  peace 
may  appoint,  if,  however,  these  persons  have  entered  on  the 
duties  of  their  office  their  acts  are,  under  the  decisions  of  the  su- 
preme court  of  this  state,  valid,  so  far  as  the  public  and  third 
persons  are  concerned.  Thus,  if  they  have  examined  teach- 
ers and  given  certificates  of  qualification,  the  certificates  are  good, 
so  as  to  justify  the  trustees  of  school  districts  in  paying  the  pub- 
lic money  to  teachers  holding  them.  The  right  of  your  town  to 
receive  the  public  money  cannot  be  affected  in  any  manner  by 
the  fact  that  they  have  been  improperly  elected.* 

•  in  the  case  of  Wilcox  vs.  Smith,  5  Wendell  231,  the  supreme  court  held, 
that  "  an  individual  coming  into  office  by  color  of  an  election  or  appointment,  is 
an  officer  de  facto,  and  his  acts  in  relation  to  the  public  or  third  persons,  are  va- 
lid until  he  is  removed,  although  it  be  conceded  that  his  election  or  appointment 
was  illegal." 

So  in  a  case  in  Massachusetts,  referred  to  by  the  court  in  the  above  mention- 
ed case,  the  acts  of  a  sheriff  dc/acfo  were  held  valid  as  to  third  persons,  though 
his  appointment  was  subsequently  declared  to  have  been  made  "  without  coa- 
^  stitutional  and  legal  authority." 


?$• 


232  CASES    DECIDED   BY    THE         ■  '  '  , 

The  Trustees  of  school  district  No. in  the  town  ^ 

of  Burlington,  ex  parte. 

Mode  of  paying  the  public  money  to  a  teacher  in  a  special  case  explained,    ''f ' 
The  number  of  children  attending  school  during  the  year,  must  be  ascerf&inid 
from  the  teacher's  lists. 

This  was  an  application  for  the  direction  of  the  Superinten- 
dent in  certain  cases,  the  nature  of  which  will  appear  by  his  an- 
swer. 

By  John  A.  Dix,  April  16,  1835.  I  endeavored  in  my 
communication  to  the  inspectors  of  common  schools  of  the  town 
of  Otsego,  who  addressed  some  inquiries  to  me,*  to  be  so  expli- 
cit with  regard  to  the  application  of  the  public  money  to  the 
payment  of  teachers'  wages,  that  no  misapprehension  should  ex 
ist  in  relation  to  it.  This  letter  you  say  you  have  seen,  but  as 
you  do  not  consider  it  as  meeting  your  inquiries,  1  proceed  to  an- 
swer them. 

The  public  money  must  be  wholly  expended  for  services  ren- 
dered during  the  year  in.  which  it  is  received.  Suppose  a  teacher 
is  engaged  in  November  and  teaches  from  the  1st  of  December 
to  the  end  of  February,  three  months.  Out  of  the  school  mo- 
neys received  in  April  ensuing  he  may  be  paid  two  months  Ava- 
ges,  and  the  balance  must  be  assessed  on  those  who  sent  ehil- 
dren  to  school  during  any  part  of  the  three  months.  Although 
he  is  to  be  paid  for  the  services  rendered  in  January  and  Febru- 
ary out  of  the  public  money,  his  wages  for  December  must  not 
be  assessed  exclusively  on  those  who  sent  children  to  school  dur- 
ing the  month  of  December.  This  would  be  unequal  and  tm- 
just.  He  can  receive  only  two  months'  wages  out  of  the  public 
money,  because  he  only  taught  two  months  during  the  year  in 
which  it  was  received  ;  but  the  money  being  paid  to  him  the  ba- 
lance mu5<t  be  considered  as  spread  over  the  whole  term  of  three 
months,  and  paid  by  those  who  sent  children  to  school  during 
any  part  of  it.  If  the  teacher  should  leave  the  school  on  the  1st  of 
January,  after  teaching  through  the  month  of  December,  and  an- 
other should  be  employed  in  his  place  to  teach  through  his  term, 
the  same  course  can  be  pursued  and  the  three  months  may  be 
regarded  as  a  single  term.  The  money  being  provided  as  before 
stated,  their  respective  dues  would  be  paid  out  of  the  amount  so 
provided.  But  if  it  becomes  indispensable  to  settle  with  the  first 
teacher  when  he  leaves  the  school,  the  necessity  of  the  case  will 
require  that  he  be  paid  by  a  rate  bill  made  out  against  those  who 
sent  their  children  to  school,  unless  the  trustees  have  in  their 

*  See  the  case  of  the  inspectors  of  common  schools  of  the  town  of  Otsego,  peg* 
21S. 


SUPERINTENDENT    OF   COMMON    SCHOOLS.  233 

hands  public  moneys  received  during  the  preceding  year  to  be 
expended  for  services  rendered  in  that  year. 

Teachers  must  keep  a  hst  containing  the  name  of  every  child 
attending  school  during  each  term.  The  trustees  should  take 
these  lists  at  the  end  of  each  term,  or  obtain  and  preserve  copies 
of  them,  and  at  the  end  of  the  year  the  exact  number  of  chil- 
dren who  have  attended  school  may  be  obtained  by  correcting 
the  lists,  so  that  no  name  shall  occur  more  than  once.  There 
is  no  other  mode  of  attaining  a  tolerable  degree  of  accuracy  in 
enumerating  children  who  are  sent  to  school. 

The  inhabitants  of  joint  school  district  No.  2  in  the 
towns  of  Unadilla  and  Sydney,  ex  parte. 

Money  cannot  be  raised  by  tax  in  a  school  district  for  contingent  uses.  c 

If  part  of  the  inhabitants  of  a  district  separate  from  the  rest,  and  build  a  privife 
school-house,  it  will  not  be  deemed  a  reason  for  organizing  them  into  a  sepa- 
rate district. 

'  In  this  case  a  portion  of  the  inhabitants  of  joint  school  district 
^o.  2  in  the  towns  of  Unadilla  and  Sydney,  without  applying 
to  the  commissioners  of  common  schools  of  those  towns  built  a 
school-house  in  one  corner  of  the  district,  and  set  up  a  private 
school.  Having  done  so,  they  applied  to  the  commissioners  of 
common  schools  to  be  set  off  as  a  separate  district,  and  the  appli- 
cation was  refused.  The  applicants  then  applied  to  the  Super- 
intendent to  know  whether,  under  the  circumstances,  he  would 
not  direct  a  new  district  to  be  formed.  The  Superintendent  was 
also  requested  to  state  whether  in  his  opinion  a  tax  ol  ten  dollars 
could  be  raised  for  repairs  in  district  No.  2^  when  it  was  admit- 
ted that  only  five  dollars  were  required  for  the  purpose. 

By  John  A.  Dix,  April  17,  1835.  No  tax  should  be  raised 
in  a  school  district  unless  it  is  absolutely  necessary  for  a  specific 
object.  It  is  wholly  irregular  and  unauthorized  to  raise  moneys 
upon  the  taxable  property  of  a  district  and  keep  them  on  hand 
for  contingent  uses.  If  five  dollars  are  wanted  for  repairs,  it  is 
altogether  wrong  to  raise  ten  dollars  on  the  alleged  ground  that 
the  balance  may  be  wanted  at  a  future  day.  The  inhabitants 
of  school  districts  are  not  restricted  in  the  amount  which  they 
may  raise  for  repairing  a  school-house,  but  they  ought  not  to 
vote  a  larger  sum  than  is  required  for  the  immediate  purpose  in 
view. 

I  have  always  refused,  excepting  for  the  strongest  reasons,  to 
direct  the  formation  of  a  school  district  on  an  appeal  from  the 
refusal  of  the  commissioners  of  common  schools,  where  a  por- 
tion of  the  inhabitants  of  an  -established  district  separate  them- 
selves from  it  and  build  a  private  school-house  for  themselves, 
without  any  previous  attempt  to  procure  a  separate  organization. 


234  CASES    DECIDED   BY    THE 

The  fact  that  they  have  built  a  school-house  at  their  own  ex- 
pense cannot  be  allowed  to  have  any  weight  in  such  a  case. 
The  commissioners  of  common  schools  of  the  towns  of  Unadilla 
and  Sydney  might  have  erected  a  new  district  if  appli(^ation  had 
been  made  to  them.  But  it  will  be  perceived  at  once  that  if  a 
portion  of  the  inhabitants  of  a  district,  without  applying  to  the 
commissioners  as  the  law  provides,  set  up  for  themselves,  and 
thus  disregard  the  provisions  of  the  law,  the  example  cannot  be 
otherwise  than  pernicious,  and  may  lead  to  the  disorganization 
of  any  district  in  the  state.  I  shall  deem  it  my  duty,  therefore, 
to  discountenance  all  proceedings  of  this  sort.  If  a  portion  of 
the  inhabitants  of  a  district  require  a  separate  oiganization,  let 
them  apply  to  the  commissioners.  If  the  commissioners  deny 
the  application,  let  them  appeal  to  the  Superintendent,  who  will 
do  them  justice.  But  if  they  disregard  the  authority  of  both  in 
the  first  instance,  they  must  not  deem  it  unjust  if  their  applica- 
tion at  a  subsequent  time  is  refused.  The  application  will  not 
be  denied  if  it  is  manifestly  proper  to  grant  it;  but,  as  I  have 
already  said,  the  fact  that  a  school-house  has  been  built  will 
have  no  influence  in  favor  of  it. 

The  Commissioners  of  Common  Schools  of  the  town 
of  Worcester,  ex  parte. 

If  a  commissioner  of  common  schools  absconds  with  school  moneys  in  his  hands, 

it  is  a  loss  to  the  town. 
A  commissioner  who  has  signed  a  receipt  for  school  .moneys,  in  conjunction  ^ith 

his  colleagues,  is  not  answerable  unless  the  moneys  actually  come  into  his 

hands. 

^his  was  an  application  to  the  Superintendent  for  his  opinion 
in  a  case  the  facts  of  which  appear  by  his  answer. 

By  John  A.  Dix,  April  20, 1835.  Jonas  Chapman,  Seneca 
Bigelow  and  Abraham  Becker  were  appointed  commissioners  pf 
common  schools  of  the  town  of  Worcester  in  March,  1834. 

In  March,  1835,  Jonas  Chapman,  Abraham  Becker  and 
Joshua  K.  Champion  were  elected  to  the  same  office. 

Before  the  town  meeting  in  March,  1835,  Jonas  Chapman 
obtained  from  the  collector  of  the  town  the  amount  raised  on 
the  town  for  common  school  purposes  in  the  year  1834,  being 
$109.15,  and  gave  the  collector  a  receipt  signed  by  himself  and 
Seneca  Bigelow. 

The  sum  before  mentioned  as  received  by  Chapman  remained 
in  his  hands  until  about  the  1st  of  April  instant,  when  he  ab- 
sconded without  paying  over  any  part  of  it  to  his  associates ; 
and  no  part  of  it  has  at  any  time  been  in  the  hands  of  either  of 
the  other  commissioners. 

The  equal  sum  of  $109.15,  derived  from  the  common  school 


SUPERINTENDENT    OF    COMMON  SCHOOLS.  235 

fund,  has  been  received  from  the  county  treasurer,  and  appor- 
tioned according  to  law  by  the  commissioners. 

Tlie  question  now  occurs,  whether  the  town  or  the  commis- 
sioners must  sustain  the  loss  occasioned  by  the  absconding  of 
Chapman  ? 

I  take  it  for  granted  that  the  payment  to  Chapman  was  made  ,^ 
by  the  town  collector  under  the  warrant  of  the  supervisors,  pur-  . 
suant  to  the  provisions  of  sec.  18,  page  469,  1  R.  S.  If  so,  the 
loss  must  fall  on  the  town.  The  commissioners  are  severally 
responsible  only  for  such  portion  of  the  public  moneys  as  actu- 
ally come  into  the  hands  of  each.  The  fact  that  Bigelow  sign- 
ed a  receipt  in  conjunction  with  Chapman  is  of  no  consequence 
It  is  competent  for  Bigelow  to  show  that  none  of  the  moneys 
neys  thus  receipted  for  came  into  his  hands. 

The  Trustees  of  school  district  No.  12  in  the  town 
of  Glen,  ex  parte. 

A  fence  is  a  necessary  appendage  to  a  school-house. 

This  was  an  application  to  the  Superintendent  for  his  opinion 
in  a  case  in  which  a  tax  had  been  voted  to  build  a  fence  around 
the  district  school-house  and  lot. 

By  John  A.  Dix,  April  23,  1835.  I  have  received  your 
letter  inquiring  whether  a  necessary,  wood-house  and  fence  are 
to  be  deemed  appendages  of  a  school-house,  so  as  to  bring  them 
within  the  enumeration  of  objects  for  which  the  inhabitants  of 
school  districts  are  authorized  to  lay  a  tax  on  the  taxable  inha- 
bitants of  such  districts.  My  predecessor  decided  several  years 
ago  that  a  wood-house  and  necessary  were  appendages  to  a 
school-house  within  the  meaning  of  the  statute;  and  in  my 
opinion  a  fence  around  the  school-house  lot  may  with  equal  pro- 
priety be  so  considered.  The  legislature  has  given  the  inhabi- 
tants of  a  school  district  power  to  purchase  a  site  for  a  school- 
house,  and  to  expend  four  hundred  dollars  on  the  house,  and 
certainly  a  fence  may  be  justly  regarded  as  a  necessary  appen- 
dage for  the  purpose  of  enclosing  and  securing  the  lot  and  build- 
ings from  depredation.  You  may  proceed  and  collect  the  tax 
laid  for  this  purpose. 

The  Trustees  of  school  district  No. in  the  town  v  • 

of  Lansing,  ex  parte. 

A  certificate  from  the  inspectors  of  common  schools  that  the  candidate  gave 
them  good  satisfaction  in  particular  branches,  is  not  a  legal  certificate  of  quali- 
fication for  a  teacher. 

The  inspectors  of  common  schools  in  the  town  of  Lansing 
gave  a  teacher  a  certificate  in  the  following  words:  -    ' 


236  CASES    DECIDED   BY    THE      vii^gi 

"  Having  examined  A.  B.  witli  a  view  to  his  obtaining  a  cer- 
tificate to  teach  a  common  school  in  this  town,  we  do  certify  that 
said  A.  B.  gave  us  good  satisfaction  in  reading,  writing,  arith- 
metic, accent,  cadence,  emphasis  and  orthography,  and  we  be- 
heve  him  to  be  a  man  of  good  moral  character." 

The  question  proposed  was  whether  this  was  a  suflicient  cer- 
tificate of  quaUficatioH. 

By  John  A.  Dix,  April  25,  1835.  A  certificate  of  qualifi- 
cation for  a  teacher  must  be  in  the  form  "  prescribed  by  the  Su- 
perintendent of  Common  Schools."  See  the  statute  entitled  "  Of 
Common  Schools,"  sec.  47.  The  Superintendent  has  prescribed 
the  form,  see  page  43,  pamphlet  edition  of  the  common  school 
laws,  pubhshed  by  the  Superintendent  in  1831.  (See  appendix.) 
The  inspectors  are  wrong  in  giving  a  certificate  in  any  other  form, 
as  it  is  not  a  compliance  with  the  statute,  and  may  mislead  those 
who  do  not  examine  the  subject  with  scrutiny.  A  certificate, 
therefore,  setting  forth  that  A.  B.  gave  the  inspectors  good  satis- 
faction in  particular  branches,  and  that  his  moral  character  is 
good,  does  not  conform  to  the  law,  and  it  should  not  have  been 
given  by  the  inspectors.  The  law  authorizes  them  to  give  a 
certificate  in  a  certain  event,  and  then  it  must  be  in  the  form 
specified.  If  they  are  satisfied  as  to  the  qualifications  of  the  tea- 
cher, in  respect  to  moral  character,  learning  and  ability,  they  are 
bound  to  give  him  such  a  certificate  as  the  Superintendent  shall 
have  prescribed.  If  they  are  not  satisfied,  they  should  give  him 
no  certificate.  They  are  wholly  without  authority  to  take  a 
middle  course  by  giving  a  qualified  certificate.* 

The  Trustees  of  school  district  No.  1  in  the  town  of 
' ''  ' '  Cohocton,  ex  parte. 

If  the  annual  repoit  of  a  school  district  is  lost  and  the  district  does  not  receive 
the  public  money,  applicalion  must  be  made  to  the  Superintendent  of  Com- 
mon Schools  to  have  the  deficiency  supplied  out  of  the  moneys  to  be  distri- 

"    buted  the  next  year. 

The  trustees  of  school  district  No.  1  in  the  town  of  Cohocton 
prepared  their  annual  report  for  the  year  1834,  in  February, 
1835,  and  handed  it  to  A.  B.  one  of  their  neighbors,  who  pro- 
mised to  deliver  it  to  the  town  clerk.  A.  B.  handed  it  to  another 
neighbor,  who  made  "a  similar  promise,  and  the  report  was  loet 
before  it  reached  its  destination.  The  commissioners  of  common 
schools  not  having  received  it,  did  not  include  the  district  in  the 
apportionment  of  the  public  moneys.     The  Superintendent  was 

•  See  a  case  decided  by  A.  C.  Flagg,  Dec.  16,  1827,  page  24-,  also  the  case  ^ 
the  trustees  of  school  district  No.  4  in  the  town  of  Lenox,  page  76,  and  a  deci- 
won  dated  December  26, 1884,  page  199. 


SUPERINTENDENT    OF    COMMON   SCHOOLS.  237 

desired  to  state  in  what  manner  the  loss  could  be  made  up  to 
the  district. 

By  John  A.  Drx,  May  1,  1835.  Your  annual  report  fail- 
ed to  reach  its  destination  through  your  own  negligence.  You 
should  have  handed  it  to  the  town  clerk  yourselves,  or  have  as- 
certained, before  the  time  appointed  for  the  annual  apportion- 
ment, that  it  had  reached  him. 

There  is  no  remedy  for  the  neglect  on  your  part  but  to  allow 
the  district,  out  of  next  year's  moneys,  the  sum  it  has  lost.  This 
can  only  be  done  by  order  of  the  Superintendent  of  Common 
Schools,  on  an  application  setting  forth  all  the  facts  of  the  case, 
under  oath.  Copies  of  the  affidavits  must  be  served  on  the  com- 
missioners, with  notice  of  the  time  when  the  application  will  be 
made.  A  copy  of  the  last  annual  report  must  also  be  sent  to 
the  Superintendent,  or  in  default  thereof  an  affidavit  setting  forth 
all  the  facts  necessary  to  entitle  the  district  to  participate  in  the 
distribution  of  the  public  moneys. 

When  the  whole  case  is  presented,  it  will  be  considered  whether, 
under  all  the  circumstances  the  district  should  not  be  allowed,  out 
of  the  moneys  to  be  apportioned  next  year,  the  sum  it  would 
have  received  this  year  if  the  report  had  been  delivered  to  the 
proper  person,  so  as  to  secure  the  equitable  rights  of  the  inhabi- 
tants from  the  consequences  of  the  neglect  of  the  officers  of  the 
district. 

The  Trustees  of  school  district  No.  4  in  the  town  of 
Massena,  against  the  Commissioners  of  Common 
Schools  of  said  town. 

Whett  a  new  district  is  formed  and  goes  into  operation  before  the  apportionment 
of  school  moneys  is  made  it  must  receive  its  share  of  those  moneys. 

The  facts  of  this  case  are  stated  in  the  Superintendent's  order. 

By  John  A.  Dix,  May  4,  1835.  On  the  fifth  day  of  March 
last  a  division  of  school  district  No.  4  in  the  town  of  Massena, 
w^ent  into  effect.  By  this  division  a  new  district  was  created 
and  called  district  No.  15,  On  the  7th  day  of  April  the  com- 
missioners of  common  schools  of  the  town  of  Massena  appor- 
tioned to  district  No.  15  so  much  of  the  public  money  allotted 
to  the  two  districts  according  to  the  annual  report  of  district 
No.  4  as  the  first  mentioned  district  appeared  to  be  entitled  to, 
according  to  the  number  of  children  between  5  and  16  years 
of  age  residing  in  it.  From  this  apportionment  the  trustees  of 
district  No.  4  appealed. 

It  is  alleged  in  the  affidavit  of  John  E.  Perkins,  one  of  the 
trustees  of  district  No.  4,  that  by  a  vote  of  the  district,  before  its 
division  by  the  commissioners,  three-quarters  of  the  public  money 


238  CASES    DECIDED    BY    THE        ^.A'il^ 

were  to  be  applied  to  the  winter  school,  which  commenced  on  the 
first  day  of  December  and  continued  three  and  a  half  months; 
and  that  as  the  commissioners  apportioned  to  No.  15,  $19.82, 
and  to  district  No.  4,  $22 .  59,  the  latter  will  only  be  able  to  apply 
to  the  winter  school,  which  has  been  kept  for  the  common  benefit 
of  all,  th  ree-quarters  of  $22 .  59,  instead  of  th  ree-quarters  of  $42 .41. 
It  may  be  proper  to  remark,  for  the  information  of  the  trustees 
of  district  No.  4,  although  it  does  not  touch  the  main  question 
to  be  disposed  of  by  the  Superintendent,  that  they  have  no  right 
to  apply  to  the  payment  of  the  teacher  any  portion  of  the  public 
money  received  in  April,  as  a  compensation  for  services  rendered 
previously  to  the  first  day  of  January  last.  The  Superintendent 
has  repeatedly  declared  that  the  public  money  must  be  paid  to 
qualified  teachers  for  services  rendered  during  the  year  in  which 
the  money  is  received. 

As  to  the  duty  of  the  commissioners  to  make  the  apportion- 
ment as  they  have  done  there  can  be  no  doubt. 

This  is  a  case  arising  under  the  provisions  of  sec.  26  of  the 
statute  entitled  '•  Of  Common  Schools."  Although  the  commis- 
sioners may  have  issued  their  order  previous  to  the  first  of  Janu- 
ary last  the  alteration  did  not,  as  is  admitted  by  the  trustees  of 
No.  4,  take  effect  until  the  5th  of  March.  District  No.  4  was 
not  duly  altered  within  the  meaning  of  the  statute  until  that 
day.  This  is,  therefore,  a  case  in  which  a  new  district  was 
formed  after  the  annual  reports  from  the  districts  were  received, 
or  before  the  apportionment  of  school  moneys  was  made.  It 
was  the  imperative  duty  of  the  commissioners  to  make  the  ap- 
portionment to  these  districts,  according  to  the  number  of  chil- 
dren in  each  over  the  age  of  five  and  under  sixteen  years;  and 
they  have  discharged  the  duty  in  a  manner  which  must  be  ad- 
mitted to  be  just,  according  to  the  evidence  furnished  by  the 
trustees  of  district  No.  4  in  their  annual  report. 

The  amendment  of  the  26th  section  of  the  statute  referred  to 
by  the  act  of  21st  April,  1831,  is  intended  to  apply  to  cases  in 
which  a  school  district  has  gone  into  operation  before  the  first  of 
January,  but  in  which  there  has  not  been  time,  previous  to  that 
day,  to  have  a  school  taught  for  three  months.  The  case  under 
consideration  does  not  come  within  the  amendment;  and  if  it 
did  the  duty  of  the  commissioners  would  be  precisely  the  same, 
as  the  amendment  merely  extends  the  provisions  of  section  26  to 
a  new  class  of  cases. 

The  Superintendent  regrets  that  he  cannot  issue  an  order  ift 
accordance  with  his  own  views  of  the  equity  of  this  case;  but 
the  requirements  of  the  law  are  so  clear  that  he  cannot  venture 
to  make  a  decision  which  conflicts  with  them. 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  239 

It  is  accordingly  ordered,  that  the  appeal  of  the  trustees  afore- 
said be  dismissed,  and  the  apportionment  made  by  the  commis- 
sioners be,  and  it  is  hereby  sustained. 

The  Trustees  of  school  district  No.  2  in  the  town  of 
Eaton,  ex  parte. 

If  a  trustee  refuses  to  serve,  the  district  may  elect  another  person  to  the  oflSce* 

The  facts  of  this  case  are  stated  In  the  opinion  of  the  Super- 
intendent. 

By  John  A.  Dix,  May  5,  1835.  At  the  annual  meeting  in 
district  No.  2  in  the  town  of  Eaton,  held  in  October  last,  three 
trustees  were  elected  for  the  ensuing  year.  Two  of  the  persons 
elected  were  present  and  accepted,  and  the  meeting  was  regu- 
larly adjourned  to  a  day  in  the  next  week.  At  the  adjourned 
meeting,  Bartholomew,  the  third  person  elected  trustee,  came 
in  and  declined  serving.  The  inhabitants  present  at  the  meet- 
ing, on  a  motion  to  that  effect,  voted  unanimously  that  he  should 
be  excused,  and  they  then  proceeded  to  elect  Samuel  Sherman 
to  fill  the  vacancy. 

The  question  submitted  is,  whether  the  election  of  SheiTnan 
is  legal? 

lam  of  opinion  that  it  is.  Sec.  71,  page  480,  1  R.  S.  pro- 
vides for  filling  vacancies  in  school  district  offices  in  the  usual 
manner,  in  case  such  an  office  is  vacated  by  death,  "  refusal  to 
serve,"  &c.  I  consider  this  a  vacancy  caused  by  the  refusal  of 
the  individual  elected  to  office  to  serve  therein,  and  it  was  filled 
in  the  mode  provided  by  law.  The  inhabitants  of  a  school  dis- 
trict have,  it  is  true,  no  authority,  after  filling  an  office,  to  ex- 
cuse the  individual  chosen  to  it  from  sei^ving  therein :  and  I  re- 
gard the  vote  to  that  effect  in  the  case  of  Bartholomew,  as  no 
farther  material  than  as  affording  a  justification  for  him,  in  case 
he  should  be  prosecuted  for  the  penalty  annexed  by  sec.  72  (vol.* 
and  page  before  referred  to)  to  a  refusal  to  serve.  In  such  a  case"  . 
the  vote  of  the  meeting  would  doubtless  go  far  in  the  mind  of 
the  court,  before  which  such  prosecution  should  be  made,  to 
show  a  "sufficient  cause"  for  refusing  to  serve,  although  he 
might  be  put  upon  showing  reasons  for  so  refusing,  independent- 
ly of  any  action  of  the  meeting  in  the  case. 

The  legality  of  Sherman's  election  depends  altogether  on  the 
existence  of  a  vacancy.  On  this  point  I  entertain  no  doubt. — 
He  was  lawfully  elected  ;  and  if  another  vacancy  has  occurred 
by  a  removal  out  of  the  district,  he  and  the  remaining  tnistee 
should  call  a  special  meeting  of  the  inhabitants  to  fill  it. 

.'V  •■<;.■•.....  ..'-^"^♦'i  -..1    ,:,.Ut:i^ 


240  '       •^ASES    DECIDED    BY   THE 

The  Trustees  of  school  district  No. in  the  town 

of  Smyrna,  ex  parte. 

Tnisteea  may  require  a  bond  of  the  collector  whenerer  a  warrant  is  delirered  to 
him  for  collection. 

If  the  trustees  do  not  require  a  bond  of  the  collector  he  may  execute  a  warrant 
without  §;iving  one. 

Quere. — Whether  the  bond  given  by  a  collector  when  about  to  execute  a  war- 
rant, is  a  security  for  the  faithful  execution  of  the  duties  of  his  office  generally. 

The  Superintendent  was  desired  to  state  in  this  case  whether 
a  collector  could  execute  a  warrant  without  giving  a  bond,  and 
whether  the  trustees  were  bound  to  exact  a  bond  from  him  when- 
ever a  warrant  was  delivered  to  him  to  collect  a  tax. 

By  John  A.  Dix,  May  9,  1835.  The  collector  of  a  school 
district  must  give  a  bond  to  the  trustees  whenever  required  by 
them,  "conditioned  for  the  due  and  faithful  execution  of  the  du- 
ties of  his  office."  The  exaction  of  the  bond  would  seem,  from 
the  languajxe  of  the  law,  to  be  a  matter  of  discretion  with  the  trus- 
tees ;  and  if  it  is  not  required  by  them,  the  collector  may  go  on 
and  execute  warrants  entrusted  to  him  without  giving  security. 
They  may  require  a  bond  to  be  given  by  him  whenever  any  war- 
rant is  delivered  to  him  for  collection  ;  and  although  the  bond  w 
conditioned  generally  for  a  due  and  faithful  execution  of  the  du- 
ties of  his  office,  it  may  be  questionable  whether  it  is  binding, 
excepting  for  the  specific  purpose  for  which  it  is  giv^en,  that  is,  to 
secure  the  execution  of  the  warrant  about  to  be  received  by  him. 
It  is  therefore  clearly  proper  to  exact  a  bond  whenever  a  warrant 
is  to  be  delivered  to  him,  provided  the  sum  to  be  collected  is  of 
such  an  amount  as  to  render  it  of  any  consequence;  and  if, 
through  the  omission  of  the  trustees  to  require  it,  any  moneys 
should  be  lost,  they  would  be  wholly  inexcusable  for  failing  to 
take  a  precaution,  which  the  law  has  provided  for  the  express 
purpose  of  affording  entire  security  to  the  district. 

The  Trustees  of  school  district  No.  2  in  the  town  of 
of  Pendleton,  ex  parte. 

If  a  collector  gives  a  bond,  and  after  collecting  part  of  a  tax  resigns,  quere,  whe- 
ther he  is  not  liable,  if  the  whole  amount  is  not  collected. 

In  this  case  it  was  stated  to  the  Superintendent  that  the  col- 
lector of  the  district  had  given  a  bond  and  received  a  warrant 
for  execution,  and  that,  after  having  collected  part  of  the  tax, 
he  had  resigned  his  office.  The  opinion  of  the  Superintendent 
as  to  the  liability  of  the  collector  for  the  balance,  and  the  course 
to  be  taken  by  the  trustees,  was  requested. 

By  John  A.  Dix,  May  11,  1835.  If  the  collector  of  your 
district  has  resigned,  you   have  a  right  to  call  a  meeting  to 


SUPERINTENDENT    OF   COMMON    SCHOOLS.  241 

appoint  another  person  to  fill  his  place.  Has  he  resigned  agree- 
ably to  section  33,  page  348,  1  R.  S.?  tliat  is,  has  his  resig- 
nation been  accepted  by  three  justices  of  the  peace  of  the  town? 
If  not,  he  is  not  out  of  office.  Even  if  his  resignation  has  been 
so  accepted,  it  may  be  worthy  of  consideration,  whether,  after 
having  given  bonds  to  collect  and  pay  over  a  specific  tax,  he  is 
not  liable,  under  those  bonds,  in  case  any  moneys  should  be 
lost  to  the  district  by  a  failure  to  collect  them  within  the  time 
limited  in  the  warrant  delivered  to  him.  The  case  is  still  stronger 
against  him,  from  the  fact  that  he  has  partially  executed  the 
warrant  by  collecting  a  portion  of  the  tax.  If  there  has  been 
any  neglect  on  hi*,  part,  he  is  clearly  liable  under  sec.  108  of  the 
act  relating  to  common  schools  (even  if  his  resignation  has  been 
legally  accepted)  for  the  whole  amomU  of  moneys  which  might 
have  been  collected  within  the  time  limited  in  the  warrant  deli- 
vered to  him  for  their  collection,  unless  those  moneys  shall  here- 
after be  collected;  and  the  trustees  may  prosecute  his  bond  to 
recover  the  amount. 

(anonymous.)  ,-j-  ..   ;,.^ 

The  exemption  of  indigent  persons  from  the  payment  of  rate  bills  is  a  matter  of 
discretion  witli  trustees. 

^*  The  following  question  was  submitted  for  the  opinion  of  the 
Superintendent : 

^'Are  not  all  persons  who  have  not  more  property  than  the 
law  exempts  from  execution,  indigent  or  poor  persons,  according 
to  the  intent  of  the  school  act?" 

By  John  A.  Dix,  Ma]/  19,  1835.  Persons  who  have  not 
more  property  than  the  law  exempts  from  execution,  are  not  ne- 
cessarily indigent  persons.  By  existing  laws,  warrants  annexed 
to  rate  bills  are  to  have  the  effect  of  warrantslfesued  by  the  board 
of  supervbors  to  the  collectors  of  towns.  Such  warrants  reach 
property  which  is  by  law  exempt  from  execution. 

The  exemption  of  indigent  persons  from  the  payment  of  the 
wages  of  teachers  is  a  matter  of  discretion  with  the  trustees,  not 
regulated  by  any  specific  restriction,  but  entrusted  to  them  to  be 
disposed  of  in  good  conscience,  and  with  a  just  regard  to  the 
rights  of  all  concerned. 

The  Trustees  of  school  district  No.  7  in  the  town"6f 
Spencer,  ex  parte. 

If  the  amnual  meeting  in  a  school  district  is  neglected,  the  district  ofScecs  hold 
over  until  the  next  annual  meeting. 

^  By  John  A.  Dix,  May  19,  1835.  I  find  on  the  records  of 
ray  office  a  communication  in  the  following  words:  "If  the  usual 

16 


242  '•         CASES    DECIDED    BY   THE       •   i  >    '- 

time  fcH-  an  annual  meeting  in  a  school  district  passes  by,  the  dis- 
trict officers  elected  the  year  before  hold  over  another  year.  No 
meeting  can  be  called  (until  the  usual  time  comes  round  again) 
for  electing  district  officers  unless  vacancies  occur,  except  by  or- 
der of  the  Superintendent  of  Common  Schools." 

This  opinion,  which  was  given  to  you  in  answer  to  an  inqui- 
ry addressed  to  me,  is  in  conformity  with  the  repeated  decisions  of 
my  predecessor  in  office,  and  is  founded  upon  the  construction 
given  by  him  to  certain  provisions  of  law,  to  which  I  will  pro- 
ceed to  refer  you.  It  is  proper  to  add  that  I  have  concurred  in 
this  construction,  and  thus  it  has  become  a  rule  for  the  determi- 
nation of  all  questions  of  the  santie  nature,  arising  under  the 
comrrwn  school  act  and  brought  before  the  Superintendent  for 
adjudication. 

The  70th  sec.  page  480,  1  R.  S.  provides  that  "  the  clerk, 
trustees,  collector,"  (S£c.,  "  shall  hold  their  respective  offices  until 
the  annual  meeting  of  such  district  next  following  the  time  of 
their  appointment,  and  until  others  shall  be  elected  in  their 
places." 

This  provision  recognizes  the  right  of  district  officers  to  hold 
over  beyond  the  next  annual  meeting  after  their  appointment, 
unless  others  are  elected  in  their  places.  If  the  inhabitants  of 
school  districts  have  not  the  right  to  elect  new  officers  at  a  spe- 
cial meeting  called  by  the  trustees,  excepting  in  cases  of  acciden- 
tal vacancies,  which  are  specially  provided  for,  the  district  officers 
thus  holding  over  beyond  the  annual  meeting  following  their 
appointment,  must  hold  until  the  year  is  fully  expired  and  ano- 
ther annual  meeting  occurs,  unless  the  Superintendent  of  Com- 
mon Schools,  on  an  appeal  to  him,  should  order  an  election,  ia 
which  case,  his  decision  being  final  in  the  piemises,  a  new  ap- 
pointment of  offices  would  be  valid. 

By  the  61st  sec.  sub.  3,  page  478,  1  R.  S.,  the  inhabitants  ol 
school  districts  have  power  "  to  choose  a  district  clerk,  three  trus- 
tees and  one  district  cdlectw  at  their  first  meeting,  and  as  often 
as  such  offices  or  either  of  them  become  vacated." 

The  construction  given  to  this  provision  in  connection  with  the 
one  fii-st  quoted  is,  that  the  legislature  intended  to  authorize  the 
inhabitants  of  school  districts  to  appoint  officers  once  in  each 
year,  and  at  the  regular  annual  meeting  in  such  year,  and  at  no 
other  time,  unless  a  vacancy  should  occur  by  resignation,  remo- 
val, death,  refusal  to  serve,  &.c.  In  such  cases,  a  special  meet- 
ing may  be  called  pursuant  to  the  authority  given  by  the  last 
quoted  provision  of  the  statute  and  recognized  by  sec.  71,  page 
480,  1  R.  S.  If  an  annual  meeting  passes  by  without  an  elec- 
tion, and  the  persons  serving  at  the  usual  time  for  holding  said 
meeting  continue  ia  the  performance  of  their  duties  after  that 


SUPERINTENDENT   OF   COMMON   SCHOOLS.  243 

time,  there  would,  according  to  the  decision  of  the  Superinten- 
dent, be  no  vacancy  until  the  next  annual  meeting-,  unless  one 
of  the  contingencies  mentioned  in  section  7L  before  referred  to, 
should  occur.  It  seems  to  me  that  the  language  of  the  statute 
fairly  sustains  this  construction ;  and  so  far  as  the  public  interest 
is  concerned  it  is  highly  important  that  it  should  be  sustained. 
Immediately  after  the  annual  raeetings-the  trustees  of  school  dis- 
tricts are,  in  most  cases,  in  the  habit  of  making  their  arrange- 
ments for  hiring  teachers  and  opening  schools,  and  if  new  offi- 
cers are  not  appointed  at  the  proper  time,  others  should  not  be 
allowed  to  come  in  and  disturb  proceedings  whicli  are  in  a 
course  of  execution. 

The  Superintendent  of  Cbmmon  Schools  has  no  power  to  inter- 
fere with  the  determinations  of  other  tribunals.  His  decisions  are 
final  with  regard  to  the  special  cases  in  which  they  are  pronounc- 
ed. Other  tribunals  have  an  equal  right  with  the  Superintendent 
to  put  their  own  construction  upon  the  provisions  of  the  statute, 
and  in  matters  coming  within  tlieir  jurisdiction  to  lay  down  prin- 
ciples at  variance  with  those  which  govern  him  in  his  determi- 
nations. That  his  decisions  should  be  treated  with  some  defe- 
rence on  account  of  the  special  supervision  which  the  law  gives 
him  over  controversies  arising  in  school  districts,  and  indeed  in 
all  matters  arising  under  the  title  of  the  statute  relating  to  "  com- 
mon schools,"  may  reasonably  be  expected;  and  while  they 
ought  to  be  set  aade  by  other  tribunals  when  deemed  repug- 
nant to  the  express  provisions  of  law,  it  will  doubtless  ]ye  deemed 
desirable,  if  not  proper,  to  sustain  his  constructions  of  the  sta- 
tute referred  to,  in  all  cases  where  there  is  any  just  ground  for 
a  difference  of  opinion. 

The  Trustees  of  school  district  No.  2  in  the  town  of 
Granby,  against  the  Commissioners' of  Common 
«>   Schools  of  said  town. 

If  a  district  entitled  to  receive  the  public  money  is  dissolved,  and  part  of  it  an- 
nexed to  a  district  not  so  entitled,  the  latter  can  receive  no  public  money  in 
■    consequence  of  such  accession. 

The  facts  of  this  case  are  stated  in  the  Superintendent's  deci- 
sion. 

By  John  A.  Dix,  Mai/  20,  183.5.  The  Superintendent  of 
Common  Schools  has  examined  the  statement  of  facts  submit- 
ted to  him  by  the  trustees  of  school  district  No.  2  in  the  town  of 
Granby  and  the  commissioners  of  common  schools  of  said  town, 
in  reference  to  the  claim  of  said  district  to  a  distributive  share  of 
the  public  moneys  for  the  present  year,  which  cjaim  has  bee|^ 
denied  by  the  commissioners,  x^i^.^"'  '•^i  ti  it^n-ii^jum:  i<j  u'.^mF 


244  CASES    DECIDED    BY    THE      >l.|>|t>8 

Tiie  facts  agreed  on  are  as  follows : 
.  In  November.  1834,  the  commissioners  of  common  schools  of 
Granbv  annulled  district  No.  10,  and  annexed  a  part  of  it  to 
No.  2.  District  No.  10  had,  at  the  tune  of  its  dissolution,  com- 
plied with  the  requirements  of  the  statute  for  the  year  1834,  so 
that  its  trustees  would,  if  it  had  continued  in  existence,  have 
l>een  able  to  make  out  an^annual  report,  on  which  it  would  have 
l>een  entitled  to  receive  a  distributive  share  of  the  public  moneys 
for  t  he  year  1835. 

District  No.  2  was  not  and  is  not  able  to  make  an  annual  re- 
port for  the  year  1834,  on  which  it  could  have  received  or  can 
receive  a  share  of  the  public  money  for  the  year  1835. 

The  questions  submitted  to  the  Supermtendeni  arc,  1st.  Whe- 
ther district  No.  2  is  entitled  to  receive  any  public  nwney  for  the 
present  year?  and  2d.  Whether,  if  it  is  entitled  to  receive  any, 
the  apportionment  should  be  niade  in  reference  to  the  whole 
number  of  children  residing  in  it,  or  to  the  number  set  to  it  from 
district  No.  ID.' 

The  equity  of  this  case  is  clear.  District  No.  2  ought  to  re- 
ceive the  public  money,  which  the  children,  set  to  it  from  No. 
10  would  have  received  had  the  latter  district  not  been  anniilled. 
and  the  money  should  be  appropriated  solely  to  the  benefit  of 
those  children.  But  it  unfortunately  happens  in  this  case,  as  m 
others  of  equal  hardship,  that  the  express  provisions  of  the  sta- 
tute, which  the  Superintendent  has  no  power  to  supersede  by  a 
construction  at  variance  with  the  terms  of  those  provisions,  ren- 
der any  allowance  of  puWic  money  to  district  No.  2  impossible. 
District  No.  10  was  not  in  existence  on  the  first  of  January  last. 
It  was  wholly  dissolved  and  merged  in  other  districts,  the  arrange- 
ment having  taken  effect  immediately,  by  consent  of  all  the 
parties  concerned.  The  portion  of  the  distritit,  which  was  added 
to  No.  2,  became  a  part  of  the  latter  on  the  day  it  was  so  added^ 
and  by  virtue  of^lhe  union  it  was  entitled  to  participate  in  all  its 
rights  and  became  subject  to  all  its  liabilities.  These  rights  and 
liabilities  should  have  been  ascertained  before  the  arrangemem 
was  entered  into  and  assented  to  by  district  No.  10:  but  either 
through  neglect  or  inadvertence  that  portion  of  it  belonging  to 
No.  2  has  been  thus  divested  of  a  right,  which  it  might  un- 
questionably have  asserted  as  a  part  of  the  former,  had  it  re- 
tained its  organization.  There  is  now  no  remedy.  The  statute 
provides  that  "  in  n»aking  the  apportionment  of  moi^ys  among 
the  several  school  districts,  no  share  shall  be  allotted  to  any  dis- 
trict," <kc.  "  from  which  no  sufficient  annual  return  shall  have 
been  received,"  &c.  The  Superintendent  has  given  to  this  pro- 
vision a  construction  which  admits  of  the  correction  of  errors,  and 
even  of  furnishing  a  new  report,  where  one  has  been  mislaid. 


^f^ 


SUPERINTENOENT    OF    COMMON    SCHOOLS.  245 

But  it  is  acknowledged  in  this  case  tiiat  a  sufficient  report  can- 
not be  made  by  district  No.  2  for  the  year  1834,  although  the 
responsibility  is  alleged  by  the  present  trustees  to  rest  with  their 
predecessors,  who  are  said  to  have  been  guilty  of  unpardonable 
negligence. 

The  Superintendent  regrets  that  there  is  no  remedy  for  tliat 
part  of  district  No.  10  now  belonging  to  No.  2 ;  but  the  law  is  im- 
perative, and  it  must  be  complied  with.  It  is  proper  to  add,  tliat 
if  district  No.  2  were  to  receive  a  portion  of  the  public  money  on 
account  of  the  children  set  to  it  from  No  10,  it  could  not  be  ap- 
[>lied  exclusively  to  the  benefit  of  those  children.  The  provisions 
of  the  law  with  regard  to  the  application  of  the  public  moneys 
are  such  that  it  would  necessarily  go  to  the  benefit  of  the  whole 
district.  • 

By  the  statement  of  the  commissioners  annexed  to  that  of  the 
trustees  of  district  No.  2,  it  would  appear,  that  the  trustees  of 
that  district  in  1834  paid  the  public  moneys  to  a  teacher  or  teach- 
ers not  qualified  according  to  law.  If  this  fact  can  be  proved, 
the  trustees  making  the  payment  should  be  prosecuted  by  their 
successors  for  the  amount  so  paid,  as  a  balance  remaining  in 
their  hands.  The  Superintendent  has  decided  that  a  payment 
of  the  school  moneys  received  from  the  commissioners  of  com- 
mon schools  to  teachers  not  qualified  as  required  by  the  statute, 
is  not  a  payment  in  law,  and  that  the  trustees  making  such 
payment  will  be  answerable  to  their  successors  in  oflSce,  under 
section  102,  page  486,  1  R.  S.  for  the  amount  so  paid,  as  an 
unpaid  balance  remaining  in  their  hands. 

It  is  hereby  ordered,  that  the  appeal  of  the  trustees  of  school 
district  No.  2  aforesaid,  from  the  decision  of  the  commissioners 
of  common  schools  of  Granby,  in  refusing  to  apportion  to  said 
district  a  part  of  the  public  moneys  for  the  year  1835,  be,  and  it 
is  hereby,  dismissed. 

The  Inhabitants  of  school  district  No.  5  in  the  town 
of  Hornby,  ex  parte. 

Taxes  must  be  paid  in  money. 

In  this  case  a  tax  was  voted  for  building  a  school-house,  with 
a  direction  to  the  trustees  that  any  person  who  might  furnish 
materials  should  be  credited  on  the  tax-list  for  the  value  of  the 
materials  so  furnished,  in  reduction  of  the  amount  of  his  tax. — 
The  Superintendent  was  desired  to  state  whether  such  a  proceed- 
ing was  legal. 

By  John  A.  Dix,  May  20,  1835.  Taxes  must  be  collected 
in  money  from  all  the  persons  liable  to  pay  them.     No  man  can 


246  .fr^OOff'  CASES    DECIDED   BY    THE 

• 

be  allowed  to  commute  by  furnishing  materials  for  a  school- 
house.  But  if  any  individual  furnishes  materials,  he  is  entitled 
to  a  fair  compensation  in  money  for  them ;  so  that,  in  fact,  al- 
though he  must  pay  his  money  to  the  collector  he  will  receive  it 
back  fcpm  the  trustees.  At  the  same  time  it  is  necessary  to  pre- 
serve the  regular  form  of  proceeding,  and  the  collector  is  entitled 
to  his  fees  on  the  whole  amount  of  the  tax  if  he  can  collect  it. 

The  Commissioners  of  Common  Schools  of  the  town 
of  Henderson,  ex  parte* 

Every  person  set  off  to  a  new  district  is  entitled  to  his  share  of  the  value  of  the 
school-house  from  which  he  is  taken,  whether  he  has  contributed  to  its  erec- 
tion or  not. 

The  commissioners  of  common  schools  of  the  town  of  Hen- 
derson, intending  to  divide  a  school-district  and  form  a  new  one, 
applied  to  the  Superintendent  to  know  whether  it  was  proper  to 
allow  to  persons  set  off  to  the  new  district,  any  portion  of  the 
value  of  the  school-house,  if  they  had  not  contributed  to  its 
erection. 

By  John  A.  Dix,  May  29,  1835.  Whenever  a  new  school 
district  is  formed,  ii  is  entitled  to  receive  from  the  district  from 
which  it  is  taken,  a  portion  of  the  value  of  the  school-house  and 
property  of  the  latter.  The  proportion  is  to  be  ascertained  by  a 
comparison  of  the  value  of  the  taxable  property  of  the  persons 
set  off  to  the  new  district,  with  the  amount  of  the  taxable  pro- 
perty of  the  persons  remaining  in  the  old  district  or  districts,  out 
of  which  the  new  one  is  formed.  This  is  the  course  required 
by  law  to  be  pursued  ;  and  although  it  may,  and  doubtless  does, 
sometimes  operate  unequally  and  unfairly,  it  must  be  adhered  to. 
Thus  a  person  set  off  from  an  old  district  to  a  new  one,  at  the 
time  of  the  formation  of  the  latter,  will  carry  to  the  new  one 
for  his  own  benefit  a  portion  of  the  value  of  the  school-house  of 
the  old  district,  all  iiough  he  may  have  become  a  member  of  the 
old  district  after  the  school-house  w^as  built,  and  thus  contributed 
nothing  to  its  construction.  The  operation  of  the  law,  as  I 
have  already  said,  may  in  some  cases,  prove  inequitable;  but 
the  only  remedy  is  for  the  commissioners  in  such  cases  to  abstain 
from  forming  a  new  district,  unless  the  persons  situated  as  above 
mentioned  voluntarily  relinquish  their  claim  to  a  benefit  to  which 
they  are  not  entitled  on  principles  of  equity.  If  the  commis- 
sioners go  on  and  form  the  district,  the  matter  is  lieyond  their 
control  and  the  requirements  of  the  law  must  be  complied  with. 


wW  '^ 


aUPERINTENDENT    OF   COMMON    SCHOOLS.  247 

The  Trustees  of  school  district  No.  5  in  the  town  of 
Belfast,  ex  parte. 

Trustees  are  answerable  only  for  such  moneys  as  come  into  their  hands. 

In  October,  1833,  A,  B  and  C  were  elected  trustees  of  school 
district  No.  5  in  the  town  of  Belfast.  A  received  the  public  mo- 
ney apportioned  to  the  district  in  April,  1834,  and  paid  B  five 
dollars,  which  by  an  understanding  between  them  at  a  subse- 
quent time  w£is  to  be  passed  to  the  credit  of  A  on  a  private  ac- 
count between  them,  A  subsequently  absconded  with  the  ba- 
lance of  the  public  moneys  in  his  hands.  Under  these  circum- 
stances the  direction  of  the  Superintendent  was  requested  by  the 
successors  in  office  of  A,  B  and  C. 

By  John  A.  Dix,  June  3,  1835.  There  is  no  remedy  for 
the  defalcation  of  A.  He  is  personally  liable ;  but  if  he  has  ab- 
sconded and  cannot  be  reached,  the  money  in  his  hands  will  be 
lost  to  the  district,  as  his  colleagues  are  answerable  only  for  so 
much  as  they  severally  received. 

The  five  dollars  paid  by  A  to  B  can  be  recovered  of  the  latter. 
If  it  was  paid  to  him  as  public  money,  the  subsequent  agreement 
to  pass  it  to  the  credit  of  A  on  a  private  account  is  not  only  ille- 
gal but  fraudulent  in  both  parties.  If  the  facts  alleged  can  be 
proved,  B  should  be  prosecuted  immediately  for  the  five  dollars, 
as  an  unpaid  balance'remaining  in  his  hands,  by  the  present 
trustees  of  the  district.     He  had  better  pay  it,  and  save  costs. 

The  Trustees  of  school  district  No. in  the  town 

iff  of  Solon,  ex  parte. 

If  the  votes  of  the  individuals  in  favor  of  a  site  for  a  school-house,  are  procured 
by  appeals  to  their  pecuniary  interests,  the  proceedings  will  be  set  aside. 

In  this  case  a  vote  was  taken  at  a  meeting  of  the  inhabitants 
of  the  district  to  change  the  site  of  the  school-house.  The  vote 
was  passed  by  a  majority  of  two,  and  it  was  alleged  that  two 
persons  who  were  opposed  to  the  removal  of  the  school-house 
voted  in  favor  of  it. 

By  JoftN  A.  Dix,  June  20,  1835.  If  the  district  has  been  al- 
tered, and  the  alteration  has  actually  taken  effect  when  the  vote 
to  change  the  site  is  given,  a  majority  of  votes  is  sufficient.  But 
if  that  majority  has  been  procured  by  appealing  to  the  pecuniary 
interests  of  one  or  more  voters,  as  by  offering  to  pay  their  tax  if 
they  will  vote  in  a  particular  manner,  I  should  most  certainly, 
oh  proof  of  the  facts,  set  aside  the  proceedings.  All  such  bar- 
gains are  fraudulent  and  corrupt.  In  school  district  concerns, 
as  in  all  other  cases,  the  exercise  of  the  right  of  suffrage  should 
be  unbiassed  and  free  from  all  pecuniary  influences.  "•'  -■■^  .'*'^y" 


248  CASES    DECIDED    BY    Tfflr    '*'•»'* ^^  4t 

The  Trustees  of  joint  school  district  No.  6  in  thfe 
towns  of  Tyrone  and  Barrington,  against  the  Com- 
missioners of  Common  Schools  of  the  town  of 
Barrington. 

■t^f  ■  3^  school  district  reported  to  the  Superintendent  from  the  year  1822  to  1835  war?  m 

5?P'        held  to  have  a  legal  existence,  though  the  record  of  its  organization  was  sign-  * 

^  ed  by  only  one  of  the  commissioners  of  common  schools. 

K  The  consent  of  the  trustees  of  a  joint  district  to  an  alteration,  does  not  authorize 
the  commissioners  of  one  town  to  make  it  without  the  concurrence  of  the  com- 
missioners of  the  other. 

The  facts  of  this  case  are  stated  in  the  order  of  the  Superin- 
tendent. 

By  John  A.  Dix,  June  22,  1835.  This  is  an  application 
to  the  Superintendent  of  Common  Schools  from  the  trustees 
of  joint  school  district  No.  6,  lying  partly  in  the  town  of  Tyrone 
and  partly  in  the  town  of  Barrington,  for  some  direction  in  the 
matter  of  the  proceedings  of  the  conmiissioners  of  common  schools 
of  the  last  mentioned  town,  in  refusing  to  apportion  to  said  dis-  * 
trict,  out  of  the  public  moneys  belonging  to  the  town,  the  amount 
it  was  entitled  to  receive  under  an  order  of  the  Superintendent, 
dated  the  12th  day  of  June,  1834.*     To  this  application  an  an-  ■ 

swer  has  been  made  by  the  said  commissioners j  and  although       9m 
the  matter  in  dispute  has  been  disposed  of,  after  full  considera-        j| 
tion,  by  the  order  referred  to,  he  will  proceed  to  state  his  views 
in  relation  to  the  reasons  assigned  by  the  commissioners  for  diso- 
beying his  directions.     He  is  desirous  that  no  misapprehension  *lf 
should  exist  as  to  the  opinion  which  he  entertains  with  regard 
to  the  position  they  have  thought  proper  to  take.     To  facilitate  -» 
a  correct  understanding  of  the  questions  at  issue,  it  will  be  ne-  ^ 
cessary  to  enter  into  a  brief  detail  of  the  circumstances  connect- 
ed with  the  organization  of  district  No.  0,  and  the  changes  which 
it  has  undergone  at  subsequent  periods  of  time. 

District  No.  6  was  organized  as  a  school  district  lying  wholly 
in  the  town  of  Wayne  in  the  county  of  Steuben,  on  the  15th 
April,  1817.  Although  the  language  of  the  order  imports  that 
it  had  the  concurrence  of  the  commissioners  of  common  schools 
of  the  town,  and  although  a  description  and  designation  of  the 
boundaries  of  the  other  school  districts  in  the  town  were  given  in 
the  same  order,  it  appears  by  the  records  of  the  town  to  be 
signed  by  only  one  of  the  commissioners. 

On  the  9th  day  of  June,  1819,  the  commissioners  of  common 
schools  of  the  town  of  Wayne,  made  a  new  designation  of  the 

*  See  the  case  of  the  trustees  of  joint  school  district  No.  6  in  the  towns  of  Ty- 
rone and  Barrington,  agctitut  the  commissioners  of  common  schools  of  the  latt*r 
town,  page  172.  *V  ■M  n's  (TWil  aoii  biltJ  l»r4SJi«UiJtJ  f*ii 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  249 

lx)uudaries  of  some  of  tiie  school  districts  in  the  town,  by  an  or- 
der commencing  as  follows  :  "  We,  the  commissioners  of  com- 
mon schools,  in  and  for  the  town  of  Wayne,  have  this  9th  day 
of  June,  1819,  altered  the  boundaries  of  the  following  school  dis- 
tricts in  manner  following,"  &c.  Among  the  districts  thus 
altered  is  No.  6,  the  boundaries  of  which  are  minutely  described, 
commencing  at  a  given  point  arid  following  the  outlines  of  the 
district  to  the  place  of  beginning.  The  order  is  signed  by  two 
of  the  commissioners  of  common  schools,  and  is  recorded  by  the 
town  clerk. 

By  an  act  of  the  legislature,  passed  the  16th  day  of  Apri?^ 
1822,  (laws  of  1822,  chapter  237,)  the  town  of  Wayne  was  di- 
vided, and  the  towns  of  Barrington  and  Tyrone  formed  out  of 
parts  of  it.  By  virtue  of  this  act,  which  took  effect  from  the  last 
day  of  February,  1823,  district  No.  6  became  a  joint  district  of 
the  towns  of  Barrington  and  Tyrone,  as  its  territory  was  includ- 
ed partly  within  the  boundaries  of  each  of  those  tow^ns. 

On  the  5th  day  of  January,  1833,  the  commissioners  of  com- 
mon schools  of  the  town  of  Barrington,  formed  a  new  school  dis- 
trict under  the  name  of  district  No.  8,  to  which  they  assigned  or 
set  off  all  that  part  of  joint  district  No.  6,  which  was  included 
within  the  boundaries  of  the  town  of  Barrington.  The  trustees 
of  joint  district  No.  6  gave  their  consent  in  writing  to  the  forma- 
tion of  district  No.  8  in  Barrington,  but  the  commissioners  of 
common  schools  of  the  town  of  Tyrone  did  not  concur  in  the  al- 
teration of  No.  6,  nor  does  it  appear  that  any  attempt  was  made 
to  procure  their  attendance. 

By  the  order  of  the  Superintendent  of  Common  Schools  bearing 
date  the  twelfth  of  June,  1834,  it  was  decided  "  that  the  proceed- 
ings of  the  commissioners  of  common  schools  of  the  town  of 
Barrington,  in  annexing  to  school  district  No.  8  certain  inhabi- 
tants belonging  to  joint  district  No.  G  in  Barrington  and  Tyrone, 
on  the  5th  January,  1833,  are  void  and  of  no  effect,  and  that 
said  inhabitants  still  belong  to  said  joint  district."  It  was  also  de- 
cided that  the  commissioners  of  the  town  of  Barrington  should 
apportion  to  joint  district  No.  6  out  of  the  next  public  moneys 
which  should  come  into  their  hands,  the  sum  which  said  district 
should  have  received  on  the  first  Tuesday  of  April,  1834,  accord- 
ing to  the  principles  of  the  decision  then  pronounced. 

The  directions  contained  in  this  older  have  been  set  at  defi- 
ance by  the  commissioners  of  Barrington.  They  have  not 
brought  up  the  question  thus  disposed  of  for  a  re-consideration 
upon  an  allegation  of  errors  in  the  facts  or  arguments  on  which 
the  decision  of  the  Superintendent  was  founded,  nor  have  they 
made  any  application  to  him  for  a  rehearing,  with  a  view  to  the 
production  of  neAvly  discovered  evidence.     On  the  contrary,  they 


250  ;  i.  CASES    DECIDED    BY    THE  ^^  ^ 

have  wholly  disregarded  his  order  and  refused  to  obey  the  direc- 
tions contained  in  it,  although  his  decisions  are  declared  by  law 
to  be  final  in  all  matters  of  controversy  relating  to  common 
schools,  which  are  brought  before  him  for  adjudication. 

Before  entering  into  an  examination  of  the  reasons  assigned 
by  the  commissioners  for  the  course  they  have  taken,  it  may  not 
be  improper  to  refer  to  the  objections  raised  by  them  to  the  relief 
asked  for  in  this  case,  on  the  ground  that  the  application  was 
not  made  within  thirty  days  after  their  refusal  to  apportion  to 
joint  district  No.  6  its  proper  share  of  the  public  money  accord- 
ing to  the  principles  of  the  Superintendent's  decision.  In  ordi- 
nary cases,  the  established  rule  would  be  enforced,  and  the  ob- 
jection so  far  entertained,  as  to  require  the  applicants  to  show  a 
sufficient  reason  for  their  failure  to  comply  with  the  regulation. 
But  in  this  case  it  cannot  be  allowed  to  prevail  even  to  the  ex- 
tent referred  to.  The  limitation  of  time  by  the  regulations  of 
the  Superintendent  in  matters  of  appeal  brought  before  him,  is 
not  intended  to  apply  to  proceedings  void  for  want  of  Jurisdic- 
tion, or  to  cases  of  refusal  on  the  part  of  those  who  are  concerned 
in  the  administration  of  the  common  school  system,  to  execute 
his  decisions.  In  all  such  cases  the  parties  injured  will  be  al- 
lowed to  seek  redress  at  any  time,  provided  the  rights  of  others 
are  not  prejudiced  by  the  delay,  and  that  the  application  for  re- 
lief is  not  l3arred  by  express  provisions  of  law.  In  the  case  un- 
der consideration,  the  applicants  addressed  a  letter  to  the  Super- 
intendent soon  after  the  decision  complained  of  was  announced 
by  the  commissioners,  not  supposing  that  the  occasion  was  such 
a  one  as  to  call  for  an  appeal  in  the  usual  manner ;  and  it  is  by 
the  advice  of  the  Superintendent  that  the  application  is  made  in 
its  present  form,  and  with  the  understanding  that  the  lapse  of 
time,  which  occurred  in  writing  to  him  and  receiving  his  answer, 
would  not  be  permitted  to  operate  to  their  prejudice. 

In  the  answer  of  the  commissioners  to  the  appeal  which  led 
to  the  decision  contained  in  the  Superintendent's  order  of  the 
12th  June,  1834,  it  was  not  alleged  that  the  organization  of 
joint  district  No.  6  was  defective  in  its  origin.  The  legal  exist- 
ence of  the  district  was  not  at  that  time  directly  impeached. 
But  it  is  now  contended  that  inasmuch  as  the  order  of  the  15th 
April,  1817,  forming  that  district,  was  signed  by  only  one  of 
the  commissioners,  the  district  was  not  legally  organized,  and 
that  it  has  not  since  that  time  acquired  a  legal  existence.  In 
reply  to  this  argument,  it  is  sufficient  to  say,  that  the  provision 
in  the  act  of  the  15th  April,  1814,  laws  of  1814,  chap.  192,  sec. 
1 1,  requiring  the  commissioners  of  common  schools  immediately 
after  the  formation  or  alteration  of  any  school  districts  to  describe 
and  number  the  same,  and  to  deliver  the  description  and  num- 


V* 


ber 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  251 


thereof  in  writing  to  the  clerk  of  the  town,  to  be  by  the  lat- 
ter recorded  in  the  town  records,  is  merely  directory  to  those  offi- 
cers ;  and  the  Superintendent  has  frequently  decided,  that  the 
failure  of  the  commissioners  to  describe  a  district  in  writing,  or 
the  omission  by  the  cleik  to  put  the  description  on  record,  should 
not  be  deemed  fatal  to  the  existence  of  the  district,  if  its  exist- 
ence as  a  district  for  a  length  of  time  could  be  proved  by  other 
evidence.  This  is,  it  is  true^  a  ease  of  a  different  character. 
The  record  is  not  wanting,  but  it  does  not  show  on  its  face  a 
sufficient  authority  to  form  the  district.  It  is  however  to  be  con- 
sidered that  eighteen  years  have  elapsed  since  this  proceeding 
was  put  on  record  ;  that  the  records  in  the  office  of  the  Secie- 
tary  of  State  show  the  district  to  have  been  regularly  reported  to 
him  by  the  commissioners  of  common  schools  as  a  legally  orga- 
nized district  as  early  as  the  year  1822 ;  that  its  legal  organiza- 
tion has  not  until  now  been  impeached  ;  and  that  the  commis- 
sioners do  not  deny  that  it  has,  since  the  year  1819,  held  its  an- 
nual meetings,  made  its  reports,  and  received  its  public  money 
from  the  town  of  Wayne  while  it  belonged  thereto,  and  from 
the  towns  of  Tyrone  and  Barrington  since  they  have  been  erect- 
ed, except  from  the  town  of  Barrington  for  the  last  two  years. 
The  record  of  the  town  of  Wayne  need  not  be  presumed  to  be  er- 
roneous, so  far  as  the  organization  of  the  district  is  concerned; 
but  it  will  be  presumed,  under  all  the  circumstances  referred  to, 
and  upon  the  evidence  furnished  in  the  annual  reports  of  the 
commissioners  of  common  schools,  that  the  district  has  a  legal 
existence :  and  as  it  has  for  eighteen  years  complied  with  the 
requirements  of  the  law,  and  its  rights  as  a  district  have  been 
acknowledged  by  all  concerned  until  the  occurrence  of  the  pre- 
sent controversy,  the  Superintendent  will  not  allow  its  organiza- 
tion to  be  disturbed  excepting  in  the  mode  prescribed  by  law. 
He  will  not  allow  the  records  in  his  office  for  a  series  of  years  to 
be  impeached  on  the  ground  that  those  of  the  town  of  Wayne 
are  defective  in  a  single  instance.  So  far  as  questions  of  bounda- 
ries are  concerned,  the  records  of  the  town  with  regard  to  school 
districts  must  be  deemed  of  the  highest  authority.  But  where  the 
legal  existence  of  a  school  district  is  called  in  question,  and  the 
reports  of  the  commissioners  of  common  schools  of  the  town  for 
a  succession  of  years  show  that  the  district  has  complied  with 
the  requirements  of  the  law,  that  it  has  been  recognized  as  an 
organized  district,  and  received  the  public  money,  equity  de- 
mands that  the  testimony  furnished  by  those  reports  should  pre- 
vail so  far  as  to  save  and  maintain  the  rights  of  the  district. 

With  regard  to  the  order  of  the  9th  June,  1819,  altering  the 
boundaries  of  district  No.  6  and  describing  them  anew,  it  is  al- 
leged by  the  commissionersj  that  as  the  record  of  the  organiza- 


"iSi-- 


252  MP^'"  tASfeft    DECIDED   BY    THg  '>'»<•»  ^ 

tion  of  the  district  on  the  15th  April,  1817,  issigrieiS  by  only  one 
ot  the  commissioners  of  the  town  of  Wayne,  and  as  the  con- 
currence of  a  majority  was  necessary  to  give  validity  to  the  pro- 
ceedings, the  district  never  had  a  legal  existence,  and,  as  a  con- 
sequence, that  the  act  of  the  commissioners  on  the  0th  June, 
1819,  which  professed  to  have  for  its  object  an  alteration  of  the 
district,  was  null  and  void,  because  that  which  did  not  previous- 
ly exist  could  not  be  altered.  Whatever  force  this  reasoning 
might  have  under  different  circumstances,  it  is  to  be  considered 
that  the  entire  boundaries  of  district  j>Jo.  6  were  on  the  last  occa- 
sion carefully  defined,  and  that  the  specific  alteration  made  in  it 
does  not  appear  except  by  a  comparison  of  those  boundaries  with 
those  set  forth  in  the  order  of  1817  under  which  the  district  was 
organized.  This  act  would  in  the  absence  of  the  record  of  1817, 
afford  presumptive  proof  of  the  legal  organization  of  the  district 
at  a  previous  time.  It  is  now  deemed  conclusive,  as  far  as 
the  admission  of  the  commissioners  is  concerned,  with  regard  to 
its  legal  existence  at  the  time  of  the  alteration.  With  what  pro- 
priety can  they  or  their  successors  come  in  and  deny  that  the 
district  had  a  legal  existence,  when  the  act  of  altering  it  clearly 
admitted  its  existence?  The  order  in  question  contained  a  new 
specification  of  boundaries,  not  in  No.  6  alone,  but  in  several 
other  districts.  An  extension  or  cx)ntraction  of  the  boundaries  of 
one  school  district  necessarily  involves  an  alteration  of  the  boun- 
daries of  one  or  more  adjacent  districts ;  and  from  the  time  the 
order  of  9th  June,  1819,  was  issued,  district  No.  6,  and  all  the 
other  districts  affected  by  the  alterations  contained  in  the  order, 
were  considered  legally  organized  districts  with  the  limits  then 
defined.  The  commissioners  are,  therefore,  concluded  by  their 
own  acts  from  denying  the  legal  existence  of  any  of  these  dis- 
tricts ;  and  they  are  also  estopped  fron^  objecting  that  district  No. 
6  was  not  formed  in  the  manner  prescribed  by  law  by  the  re- 
ports of  their  predecessors,  in  which  it  is  returned  to  the  Super- 
intendent of  Common  Schools  as  a  regularly  organized  district. 
It  is  also  objected  that  the  consent  of  the  trustees  of  district 
No.  6  does  not  appear  to  have  been  given  to  the  alteration  made 
on  the  9th  June,  1819:  that  there  is  no  evidence  of  notice  to  the 
trustees  that  the  alteration  has  been  made  as  required  by  law 
when  such  consent  is  not  obtained ;  and  that  the  proceedings 
were  null  and  void  on  these  grounds.  By  referring  to  the  laws  of 
the  state  in  relation  to  the  common  schools  passed  at  various  peri- 
ods, the  commissioners  will  perceive  that  neither  the  consent  of  the 
trustees  nor  a  notice  to  them  was  required  when  the  alteration 
referred  to  was  made.  The  act  making  such  consent  or  notice  re- 
quisite was  passed  on  the  12th  April,  1819;  but  it  was  provided  by 
the  37th  section  of  that  act  that  the  acts  of  April  15,  1814,  and 


^  SUPERINTENDENT    OF    COMMON    SCHOOLS.  253 

April  18,  1815,  should  be  repealed  from  the  first  day  of  July' 
then  next  ensuing;  and  that  all  acts  done  under  the  provisions 
of  the  laws  referred  to,  until  the  1st  of  July  should  be  and  con- 
tinue thereafter  good.  The  alteration  in  district  No.  (i,  to  which 
exception  is  at  this  late  day  taken,  for  want  of  evidence  of  the  con- 
sent of,  or  notice  to,  the  trustees,  was  made  on  the  9th  of  June, 
1819,  under  the  act  of  April  15,  1814;  and  by  the  11th  section  of 
this  act  commissioners  of  common  schools  had  power  to  alter 
school  districts  in  their  respective  towns,  between  the  10th  of  April 
and  the  10th  of  June  in  each  year,  without  the  consept  of  tiie 
trustees,  and  without  any  notice  to  them.  There  was,  therefore, 
a  strict  compliance  with  the  requirements  of  the  law  in  this  re- 
spect, so  far  as  the  facts  are  disclosed. 

The  consent  of  the  trustees  of  joint  district  No.  6  to  the  alte- 
ration which  was  made  by  the  commissioners  of  the  town  of 
Barrington  on  the  5th  of  January,  1833,  could  not  give  the  lat- 
ter jurisdiction.  The  law  has  prescribed  the  manner  in  which 
a  joint  district  shall  be  altered.  Each  town  of  which  the  district 
is  a  part  is  concerned  in  its  preservation,  and  it  is  only  with  the 
consent  of  the  commissioners  of  common  schools  of  each  town 
that  its  boundaries  can  be  enlarged  or  diminished,  excepting 
where  the  commissioners  of  one  town  refu?e  or  neglect  to  meet 
the  commissioners  of  the  other,  when  their  attendance  has  been 
required.  The  trustees  could  not,  by  consenting  to  tiie  altera- 
tion, enable  the  commissioners  of  Barrington  to  act  alone,  and 
thus  divest  the  commissioners  of  Tyrone  of  the  right  which  the 
law  gives  them,  of  passing  judgment  upon  the  proposed  measure. 
Nor  will  it  be  presumed  that  such  was  the  intention  of  the  trus- 
tees. On  the  contrary,  the  only  legitimate  presumption  which 
can  arise  from  the  facts  is,  that  the  trustees  intended  to  consent 
to  the  alteration  when  it  should  be  made  according  to  the  re- 
quirements of  the  law. 

Under  whatever  aspect  the  case  is  considered  the  Superinten- 
dent sees  no  reason  for  coming  to  a  conclusion  different  from  that 
at  which  he  arrived  on  his  first  examination  of  it.  Joint  district 
No,  6  has  now  the  same  boundaries  which  it  possessed  at  the 
time,  (previous  to  the  5th  January,  1 833,)  when  the  commissioners 
of  Barrington  undertook  to  alter  it.  That  district  is  entitled  to  re- 
ceive, according  to  the  principles  of  the  Superintendent's  decision 
contained  in  the  order  of  the  12th  June,  1834,  out  of  the  public 
moneys  apportioned  to  the  town  of  Barrington  the  sums  which 
w^ere  allotted  in  1834  and  1835  to  district  No.  8,  on  account  of 
the  children  residing  in  that  part  of  joint  district  No.  6  whicli 
lies  in  the  town  of  Barrington,  and  which  the  Superintendent 
has  declared  to  belong  to  the  latter  district.  The  Superintendent 
has  no  authority  by  law  to  enforce  the  execution  of  his  own  or- 


^ 


254  '-''■  CASES    DECIDED    BY    THE 

ders  and  decisions.  The  commissioners  of  common  schools,  as 
public  officers,  are  amenable  to  the  authority  of  the  supreme 
court,  which  would,  on  showing  sufficient  cause,  grant  a  manda- 
mus requiring  them  to  comply  with  the  directions  of  the  Superin- 
tendent, and  allow  an  attachment  against  them  to  issue  in  case  of 
refusal.  Having  exhausted  his  powers,  the  Superintendent  can 
only  refer  the  trustees  of  joint  district  No.  6  to  that  tribunal  for 
relief,  in  case  the  commissioners  refuse  to  carry  his  order  into  ex- 
ecution, with  the  assurance  that  any  aid  which  it  is  in  his  power 
to  lend  will  be  freely  afforded  in  the  prosecution  of  the  necessary 
remedies. 

(anonymous.) 

Trustees  are  sole  judges  of  the  ability  of  a  person  to  pay  his  school  bills. 
■     A  resident  cannot  be  prosecuted  by  trustees  lor  a  tax  or  for  tuition  bills. 

By  John  A,  Dix,  June  22,  1835.  The  trustees  of  school 
districts  are  the  sole  judges  of  the  ability  of  the  persons  residing 
within  their  respective  distiicts  to  pay  their  school  bills. 

With  regard  to  residents  there  is  no  power  to  prosecute.  The 
warrant  annexed  to  the  tax  list  or  rate  bill  may  be  renewed  with 
respect  to  residents,  and  with  respect  t©  non-residents  a  prosecu- 
tion may  be  commenced  by  the  trustees,  if  they  refuse  to  pay, 
and  no  goods  and  chattels  can  be  found  within  the  district  on 
which  to  levy  or  distrain.  A  resident  cannot  be  prosecuted. 
The  only  remedy  against  him  is  by  distress  and  sale  of  his  goods 
and  chattels.  Rate  bills  as  well  as  tax  lists  are  now  collected  by 
distraining,  where  the  party  assessed  does  not  pay  voluntarily. 

A  court  would  not,  on  a  prosecution  for  a  tax  or  a  tuition  bill 
allow  the  party  to  prove  his  inability  to  pay.  If  the  trustees 
have  exempted  him  from  the  payment,  it  is  a  complete  defence. 
But  if  they  have  not  so  exempted  him  the  court  would  be  bound, 
on  showing  the  debt,  to  give  judgment  against  him  for  the 
amount.  His  inability  to  pay  is  a  matter  to  be  tried  by  the  exe- 
cution of  the  warrant,  or  the  execution  on  a  judgment  rendered 
by  a  court.  If  he  has  no  goods  and  chattels,  of  which  a  levy  or 
distress  can  be  made,  the  matter  is  ended.  If  he  has,  he  is  clear- 
ly not  unable  to  pay,  and  this  is  a  question  a  court  cannot  deter- 
mine in  anticipation  of  such  a  test.  The  trustees  might  so  de- 
termine it,  and  when  they  have  done  so,  by  refusing  to  exempt 
him,  the  test  must  be  by  the  warrant,  or  by  execution  where  a 
judgment  is  obtamed  in  a  suit  brought  by  the  trustees. 


*^  (U^.>4iti  -la  JwmitMJto  9{i^  fii^uia.oi  '<t;i;l  'i(< 


.  t 


m 


SUPERIN^TENDEKT  '6*'   tfOMMON    SCHOOLS.  255 

The  Trustees  of  school  district  No.  20  in  the  town 
of  New-Paltz,  against  the  Commissioners  of  Com- 
mon Schools  of  said  town. 

The  bad  management  of  the  affairs  of  a  district  is  not  a  sufficient  reason  for  set- 
ting off  an  inhabitant. 
A  district  ought  not  to  be  altered  for  the  temporary  convenience  of  an  individual. 

The  facts  of  this  case  are  given  in  the  Superintendent's  order. 

By  John  A.  Dix,  June  24,  1835.  The  Superintendent  of 
Common  Schools  has  examined  the  appeal  of  the  trustees  of 
school  district  No.  20  in  the  town  of  New-Paltz,  from  the  pro- 
ceedings of  the  commissioners  of  common  schools  of  said  town, 
in  setting  off  Josiah  Dubois  from  said  district  to  district  No.  14, 
on  the  31st  day  of  March  last.  The  Superintendent  has  also 
examined  the  answer  of  the  commissioners  to  said  appeal,  and 
the  accompanying  affidavit  of  Josiah  Dubois,  setting  forth  his 
reasons  for  desiring  to  be  annexed  to  district  No.  14. 

The  principal  reasons  assigned  by  Mr.  Dubois  for  desiring  to 
be  set  off  from  No.  20  are;  1st,  That  the  affairs  of  the  district 
are  badly  managed;  and  2d,  That  the  school-house  in  No.  14 
is  near  the  New-Paltz  academy,  and  that  as  he  sends  his  elder 
children  to  the  academy,  it  is  more  convenient  to  send  his 
younger  children  with  them  to  the  school-house  referred  to  than 
to  send  them  into  No.  20. 

The  first  of  these  reasons  is  wholly  inadmissible  as  a  ground 
for  setting  off  a  single  inhabitant  to  another  district.  If  the  af- 
fairs of  a  school  district  are  improperly  managed,  the  true  remedy 
is  to  elect  new  trustees,  and  confide  the  trust  to  abler  or  more 
faithful  hands.  If  a  sciiool-house  has  an  inconvenient  position, 
the  site  should  be  altered  in  the  mode  prescribed  by  law.  But 
it  is  manifest  that  if  individuals  may  be  set  off  from  one  district 
to  another  for  such  causes,  there  would  be  no  assurance  that  any 
district  would  retain  its  organization  from  year  to  year. 

The  second  reason,  though  it  has  more  weight,  is  not,  in  the 
opinion  of  the  Superintendent,  sufficient  to  warrant  a  change  in 
the  boundaries  of  a  school  district.  The  condition  of  Mr.  Du- 
bois' family  is  accidental,  and  can  be  but  temporary.  The  time 
will  come,  and  it  may  be  near  at  hand,  when  his  older  children 
will  have  completed  their  education  and  his  younger  children  be 
old  enough  to  attend  the  academy.  If  this  were  now  the  case, 
he  would  have  no  interest  in  being  set  off  from  district  No.  20. 
If  he  were  to  remove  from  his  present  residence,  and  an  inhabi- 
tant were  to  succeed  him  with  children  too  young  to  be  sent  to 
the  academy,  the  latter  would  undoubtedly  desire  to  continue  in 
No.  20,  as  the  school-house  is  much  nearer  than  that  of  district 
No.  14.  The  organization  of  school  districts  should  not  be  disturb- 


'i!-* 


•1 


25G  CASES    DECIDED    BY    THE 

cd  for  liglit  or  temporary  causes.  As  population  increases  and  set- 
tlement extends,  alterations  in  their  boundaries  frequently  be- 
come necessary.  But  a  single  individual  ought  not  to  be  set  off 
from  one  district  to  another  for  his  temporary  accommodation, 
excepting  in  cases  where  the  condition  of  the  two  districts  to  be 
affected  by  the  change  concurs  in  demanding  it. 

Let  us  see  whether  this  case  comes  within  the  class  of  excep- 
tions referred  to. 

District  No.  20  has  a  taxable  property  of  $)48,641,  and  63 
children  between  .5  and  16  years  of  age.  If  Mr.  Dubois  should 
be  set  off  to  district  No.  14  from  No.  20,  the  latter  will  be  re- 
duced to  59  children  between  the  ages  referred  to,  and  to  a  taxa-  9 
ble  property  of  $42,491,  and  the  former  will  have  71  children 
and  ^102,526  of  taxable  property.  Although  both  districts  3j 
would,  alter  the  alteration,  be  capable  of  maintaining  a  respecta- 
ble school',  the  circumstances  of  the  case  are  not,  in  the  opinion 
of  the  Superintendent,  so  strong  as  to  warrant  a  change,  which 
is  on  its  face  unequal  as  between  the  two  districts. 

The  Superintendent  regrets  that  he  is  compelled  to  differ  with 
the  commissioners  of  common  schools  in  the  view  he  has  taken 
of  this  case.  But.  after  conceding  to  them  the  advantage  of  a 
more  familiar  acquaintance  with  the  local  condition  of  the  dis- 
tricts and  the  parties  interested  in  the  matter  submitted  to  him, 
he  cannot,  consistently  with  the  principles  which  have  govern- 
ed his  decisions  in  like  cases,  confirm  their  proceedings.  He 
has  no  doubt  that  they  iiave  acted  in  obedience  to  the  sugges- 
tions of  duty,  and  under  the  conviction  that  Mr.  Dubois  might  , 
be  accommodated  without  prejudice  to  the  just  rights  of  district 
No.  20.  But  after  giving  to  every  case  presented  to  him  the  best 
examination  of  which  he  is  capable,  he  is  bound,  like  them- 
selves, to  act  in  accordance  with  his  own  convictions  of  duty. 

The  proceedings  referred  to  are  set  aside,  and  Mr.  Josiah  Du«  v 
hois  is  restored  to  distria  No,  20. 

The  Commissioners  of  Common  Schools  of  the  town 
of  Cohocton,  ex  parte. 

Trustees  are  bound  to  send  or  deliver  their  annual  reports  to  the  town  clerk. 
Quere .'  Whether  two  commissioners  can  make  a  valid  apportionment  of  the  school 

moneys? 
An  apportionment  of  the  school  moneys  after  the  time  prescribed  by  law  is  good. 

In  this  case  the  trustees  of  a  school  district  handed  the  annual 
report  to  one  of  the  commissioners  of  common  schools,  who  ne- 
glected to  attend  the  meeting  for  the  apportionment  of  the  pub- 
lic moneys.  The  moneys  were  apportioned  by  two  of  the  com- 
missioners, and  the  report  of  the  district  referred  to  being  in  the 


SUPERINTENDENT    OF    COMMON   SCHOOLS.  257 

hands  of  the  absent  commissioner,  no  money  was  allotted  to 
the  district.  The  opinion  of  the  Superintendent  as  to  the  legali- 
ty of  these  jM"oceedings  was  solicited. 

By  John  A.  Dix,  June  30,  1835.  It  is  the  duty  of  the  trus- 
tees of  school  districts  to  deliver  their  annual  reports  to  the 
town  clerk,  (sec.  92,  pag-e  484,  1  R.  S.)  who  is,  by  the  provisions 
of  sub.  1,  of  sec.  43,  page  474,  1  R.  S.  authorized,  and  indeed 
bound  as  a  matter  of  duty,  to  "  receive  and  keep  all  reports  made 
to  tlie  commissionets  from  the  trustees  of  school  districts,"  <fec. 
The  mere  delivery  of  a  report  to  one  of  the  commissioners  would 
not,  I  should  think,  make  him  legally  liable  for  any  loss  which 
might  result  to  a  district  from  a  failure  or  omission  on  his  part  to 
present  it  at  the  meeting  of  the  commissioners,  on  the  first  Tues- 
day of  April,  for  the  apportionment  of  the  public  mooej^s.  The 
trustees  themselves  are  in  default  for  putting  it  into  his  hands ; 
they  should  deliver  it  to  the  town  clerk,  and  in  order  to  make  the 
commissioner,  with  whom  it  is  left,  responsible,  it  would  he  ne- 
cessary to  show  a  special  undertaking  on  his  part  to  have  it  pre- 
sented to  the  coraraissioaers  at  their  meeti«g  to  distribute  the 
public  raone)'s. 

The  question  wliether  two  of  the  commissioners  of  common 
schools,  without  the  attendance  or  con^nt  of  the  third,  can  le- 
gally apportion  the  public  moneys  is  a  delicate  one,  and  may 
fairly  give  rise  to  a  difference  of  ©pinion.  If  the  third  commis- 
sioner has  notice  of  the  meeting  and  his  attendance  is  required, 
and  from  any  unavoidable  circumstance  he  is  unable  to  attend,  w 
if  he  absolutely  refuses  to  attend,  I  thifik  an  apportionment  by 
the  other  two  having  knowledge  of  the  facts,  would  be  valid.* 
It  seems  to  me,  however,  that  it  is  useless  to  raise  this  ques- 
tion in  the  present  case.  The  moneys  have  teen  apportioned, 
and  probably  for  the  most  part  expended  by  this  time.  To  agi- 
tate the  question  of  authority  to  make  the  apportionment  can, 
clearly,  answer  no  purpose  of  justice  or  equity.  An  apportion- 
ment may,  under  certain  circumstances,  be  made  after  the  first 
Tuesday  of  April.  The  specification  of  time  is  not  intended  to 
limit  the  exercise  of  the  authority  of  the  coramisssioners.  The 
statute  is  directory  to  them ;  but  if  the  apportionment  from  any 
cause  is  not  made  on  the  day  specified,  it  may  be  made  subse- 
quently, and  the  proceeding  will  be  deemed  valid. 

*  See  a  case  decided  23d  July,  1835,  next  page, 

17 


-f*:^r> 


a?t:v 


268  .wiL-ti  .CASES    DECIDED    BY    THE     .^^..-n, 

(anonymous.) 

Rata  bills  for  teacher's  wages  should  be  promptlj  made  oirt  and  collected. 

Trustees  must  make  out  rate  bills  from  the  lists  kept  by  the  teacher. 

If  one  of  the  trustees  refuses  to  unite  in  making  out  a  rate  bill,  the  other  two 

may  act  without  his  concurrence. 
If  a  warrant  for  the  collectioii  of  a  tax  is  signed  by  two  trustees  only,  the  pre- 

aence  of  the  third  at  the  issuing  of  the  warrant  wiH  be  presumed 

By  John  A.  Dix,  Jult/  23,  1835.  There  is  no  provision  of 
law  by  which  a  rate  bill  for  teacher's  wages  is  required  to  be 
made  out  at  the  expiration  of  his  term.  All  school  bills  should 
be  promptly  made  out  and  paid,  but  the  time  is  not  limited  by 
law.  The  teacher  must  deliver  the  list  of  scholars  and  their 
attendance  kept  by  him  to  the  trustees,  and  the  falter  jnuet 
make  out  the  rate  bill  and  annex  to  it  their  warrant  for  its  col- 
lection. If  one  of  the  trustees  refuses  to  imite  in  making  out 
the  bill,  or  to  pay  his  part  of  it,  the  other  two  may  act,  and 
the  amout  due  may  be  collected  of  him  as  of  any  other  individual. 
The  supreme  court  has  decided  in  the  case  of  McGoy  vs. 
Curtice,  9  Wendell  17,  that  a  contract  made  by  all  of  the  trus- 
tees of  a  school  district,  and  "signed  by  two,  would  be  binding; 
or  that  two  could  contract  against  the  will  of  the  third,  if  he 
was  duly  notified  or  consulted,  and  refused  to  act."  The  deci- 
sion of  the  court  seems  also  to  sustain  the  doctrine,  that  if  a  war- 
rant be  issued  by  two  trustees  for  the  collection  of  a  tax,  the  pre- 
sence of  the  third  at  the  issuing  of  the  warrant  will  be  presumed 
until  the  contrary  be  shown. 

The  Commissioners  of  Common  Schools  of  the  town 
of  Fort-Edward,  ex  parte^ 

Commissioners  of  common  schools  may  certify  that  more  than  $409  is  necessary 
for  a  6chool-house»  alter  that  sum  lias  been  expended. 

The  inhabitants  of  a  school  district  in  the  toWn  of  Fort- Ed- 
ward voted  a  tax  of  $400  to  build  a  school-house.  The  tax 
was  raised  and  expended,  and  the  amount  was  found  insufi)- 
cient  to  finish  the  building.  The  trustees  of  the  district  then 
called  on  the  commissioners  of  common  schools  to  eeitifj'  that 
an  additional  sum  was  necessary,  in  order  to  procure  a  vote  of 
the  inlmbitants  to  levy  it.  The  commissioners  desired  to  be  in- 
formed whether  they  had  authority  to  make  the  requisite  certi- 
ficate in  such  a  case. 

By  John  A.  Dix,  Aug-usi  15,  1835.  The  comniissioDers 
of  common  schools  have  an  undoubted  right,  under  section  64 
of  the  statute  entitled  "Of  common  schools,"  to  certify  that  a 
larger  sum  than  four  hundred  dollars  is  necessary  and  ought 
to  be  raised  for  the  purpose  of  building  a  school-house,  in  cases 
where  that  amount  has  been  already  expended.     In  the  case 


SUPERINTENDENT    OF    COMMON   SCHOOLS.  269 

Stated  in  your  letter,  the  true  course  would  be,  if  the  propriety  of 
ihe  measure  is  clear,  to  grant  a  certificate  setting  forth  that  the 
sum  of  four  hundred  dollars  has  been  expended  on  the  school- 
house,  that  a  further  sum  (specifying  it)  is  necessary  to  complete 
it,  and  that  such  sum  ouglit  to  be  raised  for  the  purpose.  On 
the  exhibition  of  this  certificate  at  a  special  meeting  of  the  in- 
habitants of  the  district,  they  may  vote  the  additional  sura  spe- 
cified. 

It  is  always  desirahle  that  the  amount  to  be  expended  should 
be  clearly  ascertained  before  the  building  is  commenced,  in  order 
that  the  full  sum  required  may  be  stated  to  the  inhabitants  be- 
fore they  are  committed  to  any  expenditure  whatever.  At  the 
same  time  the  most  judicious  calculations  may  be  disappoint- 
€d  ;  and  as  the  authority  of  the  commissioners  in  the  matter 
referred  to  is  not  restricted  to  any  particular  point  of  tinne  or  any 
particular  stage  of  tlie  proceedings,  I  consider  them  fully  em- 
powered to  act  in  the  case  stated  by  you.  The  inhabitants 
of  a  district  cannot,  of  course,  vote  a  sum  exceeding  400  dollars 
for  a  school-house  until  after  the  commissioners  have  made  the 
necessary  certificate. 

The  Trustees  of  school  district  No.  8  in  the  town  of 
New-Haven,  against  the  Commissioners  of  Com- 
mon Schools  of  said  town. 

In  apportioning  the  value  of  a  school-house  when  a  new  district  is  formed,  the 
omissioQ  of  one  of  the  persons  aet  off  cannot  be  made  a  ground  of  Objection 
to  the  proceeding  by  an  inhabitant  of  the  old  district. 

If  a  written  notice  of  the  time^  place,  and  object  of  a  meeting  called  to  organize 
a  school  district,  is  left  at  the  house  of  one  of  the  inhabitants  in  his  abseace, 
all  the  others  being  notified  according  to  law  by  personal  service  of  the  notice, 
it  is  sufficient,  thotigh  the  notice  so  left  does  not  show  that  the  meeting  is  call- 
ed by  the  commissioners  of  common  schools. 

ff  through  an  erroneous  impression  as  to  the  title  to  the  site  of  the  school-house, 
the  commissioners  appraise  it  at  too  low  a  sum,  the  proceeding  is  not  void,  but 
may  be  vacated  on  an  appeal. 

Trustees  are  not  entitled  to  notice  of  an  appraisement  until  after  it  is  made. 

In  forming  a  new  district,  notice  of  the  alteration  may  be  served  on  a  trustee 
set  off  to  the  new  district. 

If  all  the  persons  set  off  to  a  new  district  relinquish  their  interest  in  the  school- 
house  in  the  old  district,  it  need  not  be  appraised. 

This  was  a  statement  of  facts  submitted  by  die  commission- 
ers of  common  schools  of  the  town  of  New-Haven  and  the  trus- 
tees of  school  district  No.  8  in  said  town,  for  the  Superintendent's 
opinion.  By  this  statement  it  was  shown  that  on  the  11th  of 
November,  1834,  the  commissionets  of  said  town  divided  school 
districts  No.  3  and  5,  and  formed  a  new  district  inider  the  desig- 
nation of  district  No.  8,  from  parts  of  those  districts.  The  school- 
house  in  each  district  was  appraised,  and  an  order  made  out  and 


260  CA»KS   DECIDED    BY   THE:         ■"- 

directed  to  the  trustees  requiring  them  to  levy  on  their  respective 
districts  the  amount  to  which  No.  8  was  entitled.  A  notice  for 
a  nieeting  of  tlie  inhabitants^  of  the  new  district  was  issued,  the 
meeting  was  held,  and  the  district  organized. 

The  objections  to  these  proceedings  were  as  follows-: 

1.  One  of  the  inhabitants  of  school  district  No.  5  was  bmittetf 
in  apportiorving  the  value  of  the  school-house  between  that  dis- 
Irict  and  the  new  oae.  In  consequence  of  this  omission  the  new 
district  received  a  less  amount,  by  a  very  trifling  sum,  than  it 
was  entitled  to  receive  from  No.  3,  No  exception  was,  however, 
taken  by  the  new  district,  nor  by  the  inhabitant  to  Avhose  credit 
tiie  small  sum  thus  lost  would  have  been  passed. 

2.  In  serving,  the  notice  issued  by  the  commissioners  for  th(- 
fivsi  meeting  in  the  new  district,  the  person  serving  it  not  finding 
one  of  th&  inhabitants  at  home,  left  a  note  at  his  house  inform- 
ing him  that  a  meeting  was  to  be  held  at  a  certain  time  and  place 
to  organize  the  district,  but  without  stating  that  the  comrafesion- 
ers  of  common  schools  had  called  the  meeting. 

3.  When  the  conanissroners  apportioned  the  value  of  the 
school-house  in  district  No.  3,  they  supposed  the  site  was  held 
under  a  lease  for  so  long  a  time  as  the  district  should  use  it  a& 
such ;  but  it  was  ascertair>ed  subsequently  that  the  fee  was  in. 
the  district.  Had  this  fact  been  known  to  the  commissioners  at 
the  time  they  made  thevaltmtion,  they  would  have  put  a  higher 
estimate  upon  the  value  of  the  lot. 

4.  The  trustees  of  districts  No.  3  an<t  5  were  not  informed  oi 
the  amount  of  the  valuation  of  the  school-houses  until  notice  of 
the  alteration  was  served  on  them. 

5.  Notice  of  the  alteration  was  sCTved  on  one  of  the  trustee^ 
of  No.  5  who  resided  within  the  territory  set  off  to  form  the  new- 
district.  , 

By  John  A.  Dix,  September  18,  1835.  I  have  carefully 
examined  the  stalenvent  of  facts  submitted  to  nve,  and  am  of 
opinion  that  the  pioceedings  of  the  commissioners  of  commoii 
schools  in  the  organization  of  your  school  district  (No.  8)  were 
legal.  Certainly  k  does  not  appear  to  me  that  there  will  be  any 
hazard  in  going  on  and  collecting  any  tax  which  may  be  final- 
ly imposed  on  the  district.* 

The  omission  of  one  of  the  inhabitants  of  No.  3,  who  was  set 
off  to  No.  8,  in  the  assessment  of  the  value  of  the  school-house 
and  propeity  of  the  former,  is  not  a  good  ground  of  objection  oi> 

•  In  the  case  of  Reyndds  vs.  Moore,  &  Wendell,  35,.  the  Supreme  Court  de- 
cided that  in  an  action  of  trespass  against  a  collector  for  taking  and  sctiiDg  pro- 
perty under  a  warrant  regularly  issued  by  the  trustees  of  a  school  district,  the 
plaintiff  would  not  be  allowed  to  show  that  all  the  forms  prescribed  by  the  statute, 
liad  not  been  observed  in  organizing  the  district  •'■ 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  261 

the  part  of  any  inhabitant  of  No.  3  as  now  organized,  for  the 
omission  was  not  an  injury  to  that  district.  Such  an  objection 
<:an  only  be  raised  by  some  person  aggrieved,  i.  e.  some  inhabi- 
tant of  the  new  district. 

The  notice  given  by  the  person  who  was  required  to  notify 
the  inhabitants  of  the  new  district  to  meet  and  organize,  was 
sufficient.  The  notice  set  forth  the  time,  place  and  object  of  the 
meeting,  and  this  is  all  the  law  requires. 

The  erroneous  impression  which  prevailed  with  regard  to  the 
tenure  of  the  site  of  the  school-house  at  the  time  the  appraise- 
ment was  made,  does  not  impair  the  legality  of  the  appraise- 
ment. It  might  be  a  good  ground  of  application  to  the  Super- 
intendent to  order  a  new  one ;  but  the  appraisement  now  made 
<3annot  be  set  aside  in  any  other  manner. 

Trustees  need  not  be  notified  of  the  appraisement  of  the  pro- 
perty of  their  district  previous  to  the  formation  of  a  new  district 
out  of  a  part  of  it.  It  is  desirable  that  they  should  know  when 
the  commissioners  meet  for  the  purpose  of  forming  the  district ', 
but  an  omission  to  notify  them  does  not  affect  the  validity  of  the 
proceedings. 

It  makes  no  difference  whether  notice  of  an  alteration  made 
without  the  consent  of  tnistees,  is  served  on  a  trustee  residing 
within  the  territory  remaining  in  the  old  or  that  set  off  to  the 
new  district.  He  continues  to  be  trustee  of  the  former  until  three 
months  after  service  of  siich  notice. 

When  all  the  inhabitants  of  a  new  district  voluntarily  relin- 
quish their  right  to  a  portion  of  the  value  of  the  school-house  and 
property  of  the  district  from  which  they  are  taken,  an  appraise- 
ment is  unnecessary.  The  appraisement  is  to  be  made  lor  their 
benefit,  and  if  they  relinquish  their  light,  there  can  be  no  re;»,scn 
for  making  the  appraisement. 

(anonymous.) 

^Commissioners  ef  common  schools  cannot  fix  a  site  for  a  school-house. 

If  the  inhabitants  agree  that  the  commissioners  may  select  a  site,  the  selection 
ought  to  be  acquiesced  in. 

A  district  may  repeal  a  vote  to  raise  a  tax  if  no  proceedings  have  been  commenc- 
ed m  pursuance  of  such  vote. 

By  John  A.  Dix,  September  19,  1835.  Commissioners  of 
*;ommon  schools  have  no  authority  to  fix  a  site  for  a  district 
school-house  under  any  circumstances.  The  inhabitants  of  a 
district  may,  for  the  purpose  of  ending  a  controveisy,  agree  to  re- 
fer the  matter  to  them ;  but  in  such  a  case  they  would  act  as  in- 
dividuals, and  not  as  official  agents  of  the  town  or  the  district, 
nor  would  their  decisions  under  such  circumstances  be  final. 
Sites  can  only  be  fixed  by  vote  of  the  inhabitants,  and  it  appears  to 


262  CASES    DECIDED   BY    THE 

nie  that  such  a  vote  is  necessary  after  the  commissioners  have 
selected  a  point  for  a  site,  on  a  reference  of  the  matter  to  them, 
in  order  to  give  the  proceeding  validity  and  make  the  site  legal. 
The  inhabitants  may,  after  agreeing  to  such  a  reference  of  the 
question,  refuse  to  ratify  the  selection  or  determination  of  the 
commissioners,  I  speak  rww  of  the  legal  right.  But  certainly 
after  consenting  to  such  an  arrangement  to  terminate  a  contro- 
versy, good  faith  demands  that  they  should  abide  the  result. 

The  inhabitants  of  a  district  have  a  right  to  reconsider  former 
proceedings,  and  repeal  them  if  they  think  proper.  They  may 
legally  repeal  the  vote  of  a  tax  to  build  a  school-house,  if  no  pro- 
ceedings in  relation  to  its  collection  have  been  commenced,  and 
no  contracts  entered  into  or  responsibilities  assumed  by  the  trus- 
tees in  behalf  of  the  district  in  pursuance  of  such  vote. 

(anonymous.) 

Persons  worth  fifty  dollars  may  vote  and  must  be  taxed,  though  they  may  have 

been  omitted  in  the  town  assessment. 
It  may  happen  that  persons  not  liable  to  be  taxed  in  a  school  district,  are  entitled 

to  vote  to  raise  taxes  on  the  district. 

By  John  A.  Dix,  September  24,  1835.  It  is  submitted  whe- 
ther persons  not  on  the  assessment  roll  of  the  town,  who  ha\'e 
personal  property  of  the  value  of  fifty  dollars  over  such  as  is  ex- 
empt from  execution,  may  be  taxed,  or  may  vote  at  school  district 
meetings?  Such  persons  are  undouUedly  liable  to  contribute 
their  proportion  of  any  tax  levied  on  the  district  for  common 
school  purposes,  and  should  be  included  in  the  tax  list  nf>ade  out 
by  the  trustees  in  every  such  case,  although  they  may  have  been 
omitted  in  the  assessment  roll  of  the  town.  They  are  also  en- 
titled to  vote  if  they  have  personal  property,  over  such  as  is  ex- 
empt from  execution,  to  the  amount  of  fifty  dollare  liable  to  tax- 
ation in  the  district,  whether  they  are  included  in  the  town  as- 
sessment or  not.  So  it  may  happen  that  persons  in  a  school  dis- 
trict may  be  entitled  to  vote  to  lay  a  tax  on  it,  although  they 
cannot  be  compelled  to  pay  any  part  of  it,  as  persons  who  have 
paid  a  highway  tax,  but  have  no  taxable  property. 

The  Clerk  of  school  district  No.  4  in  the  town  of 
Colesville,  ex  parte. 

School  district  libraries  are  designed  both  for  those  v?ho  have  completed  tKeir 
common  school  education  and  those  who  have  not. 

The  inhabitants  of  school  districts  may  appoint  a  librarian,  and  adopt  regulations 
for  his  government. 

In  the  selection  of  books,  sectarian  and  controversial  subjects  should  be  exclud- 
ed- 

This  was  an  application  to  the  Superintendent  for  inforraatioa 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  263 

with  respect  to  the  law  authorizing  the  inhabitants  of  school  dis- 
tiicts  to  raise  money  to  purchase  common  school  libraries,  with 
the  request  that  he  would  fur  jsh  a  catalogue  of  books  suitable 
for  the  purpose,  and  a  system  of  regulations  for  the  government 
of  the  librarian. 

By  John  A,  Dix,  October  25,  1835.  In  reply  to  your  in- 
quiries, I  do  not  see  that  I  can  at  this  moment  say  more  than 
this,  that  the  establishment  of  school  district  libraries  was  design- 
ed for  the  benefit  of  all  the  inhabitants  of  the  district,  youths  as 
well  as  adults. 

The  act  authorizing  the  establishment  of  school  district  libra- 
ries was  passed  in  pursuance  of  a  recommendation  contained  in 
my  annual  report,  as  Superintendent  of  Common  Schools,  for 
the  year  1834.  The  annexed  extract  from  that  report  will  ex- 
{^in  my  own  views  on  this  subject,  and  furnish  ground  of  in- 
ference with  regard  to  the  intention  of  the  legislature.  You  will 
perceive  that  one  of  the  contemplated  objects  was  to  furnish  the 
means  of  improvement  to  those  who  have  finished  their  common 
i»chool  education  as  well  as  to  those  who  have  not. 

"  If  the  inhabitants  of  school  districts  were  authorized  te  lay  a 
tax  upon  their  property  for  the  purpose  of  purchasing  libraries  for 
the  use  of  the  districts,  such  a  power  might,  with  proper  restric- 
tions, become  a  most  efficient  instrument  in  ditfusing  useful 
knowledge  and  in  elevating  the  intellectual  character  of  the  peo- 
ple. By  means  of  the  improvements  which  have  been  made  in 
the  art  of  printing,  a  volume  bound  in  boards,  containing  as 
much  matter  as  the  new  testament,  can  be  sold  at  a  profit  for 
ten  cents.  The  sum  of  ten  dollars  would,  therefore,  furnish  a 
school  district  with  one  hundred  volumes,  which  might  be  kept 
under  such  regulations  as  the  inhabitants  should  adopt  for  their 
common  use.  A  vast  amount  of  useful  information  might  in 
this  manner  be  collected,  where  it  would  be  easily  accessible,  and 
its  influence  could  hardly  fail  to  be  in  the  highest  degree  saluta- 
ry, by  furnishing  the  means  of  improvement  to  those  who  have 
finished  their  common  school  education,  as  well  as  to  those  who 
have  not.  The  demand  for  books  would  ensure  extensive  edi- 
tions of  works  containing  matter  judiciously  selected,  at  prices 
which  competition  would  soon  reduce  to  the  lowest  rate  at  which 
they  could  be  furnished.  By  making  the  imposition  of  the  tax 
wholly  discretionary  with  the  inhabitants  of  each  district,  and 
leaving  the  selection  of  the  works  under  their  entire  control,  the 
danger  of  rendering  such  a  provision  subservient  to  the  propagi^- 
tion  of  particular  doctrines  or  opinions  would  be  eflfectually  guard- 
ed against  by  their  watchfulness  and  intelligence." 

The  law  authorizes  the  inhabitants  to  appoint  some  person 
to  be  ''the  librarian  of  the  district,"  and  to  adopt  such  regujj^- 


264  -iOOtfUOCASES    DECIDED    BY   THE 

tions  for  his  government  as  they  may  think  proper.  These  re- 
gulations may,  from  local  and  other  causes,  be  somewhat  diffe- 
rent in  different  districts;  and  I  would  not  undertake  at  this 
time  to  recommend  any  system  as  applicable  to  all  cases.  The 
great  object  should  be  to  secure  the  safe  custody  and  preservation 
o(  the  books,  and  to  give  the  greatest  possible  facility  to  their 
circulation  for  perusal  among  the  inhabitants  of  the  district. 
The  regulations  may  be  few  and  single. 

I  had  intended  ere  this  to  procure  a  list  of  books  for  such 
persons  as  might  think  proper  to  ask  my  advice  on  this  subject. 
i)ut  have  not  yet  done  so.  In  a  few  months  purchases  may  pro- 
bably be  made  to  better  advantage  than  at  this  moment,  as  there 
are  now  in  a  course  of  preparation  at  least  two  series  of  publica- 
tions with  a  view  to  meet  the  objects  of  the  law.  As  a  general 
principle  I  would  recommend^  that  in  the  selection  of  books  all 
sectarian  and  controversial  subjects  should  be  excluded.  It  is 
for  the  inhabitants  of  the  district  to  choose  the  works  to  be  pur- 
chased, and  it  must  depend  much  on  their  discretion  in  the  exe- 
cution of  this  trust,  whether  all  the  benefits  in  contemplation  of 
the  law  will  be  secured.  A  liberal  regard  must  be  paid  to  opi- 
nions, even  though  they  have  their  foundation  in  prejudice. 
With  respect  to  certain  subjects,  no  difference  of  opinion  can 
well  exist,  so  far  as  unexceptionable  works  on  those  subjects  aie 
proposed  to  be  purchased.  Among  them  may  be  enumerated 
History,  ancient  and  modern,  Biography,  Gec^raphy,  Natural 
Philosophy,  Astronomy,  Chemistiy,  Mineralogy,  Botany,  Moral 
and  Pohtical  Philosophy,  Political  Economy,  Agriculture,  the 
Mechanic  Arts,  Statistics,  (fee.  I  do  not  intend  this  as  a  com- 
plete enumeration  of  subjects,  but  as  comprising  a  class  of  the 
character  above  referred  to. 

The  inhabitants  of  school  district  No»  9  in  the  town 
of  Fabius,  ex  parte. 

Commissioners  of  common  schools  have  no  authority  to  receive  and  decide  ujion 

appeals  from  school  districts. 
Inhabitants  of  school  districts  cannot  by  a  vote  to  that  effect,  authorize  their  trtis- 

tees  to  provide  fuel  in  any  other  mode  than  that  prescribed  by  law. 

The  following  statement  was  presented  to  the  Superintendent 
for  his  decision,  pursuant  to  a  vote  taken  at  the  annual  meeting 
in  1835,  in  school  district  No.  9  in  the  town  of  Fabius. 


iKMnf>q  9rr> 


SUPERINTENDENT    OP    COMMON   SCHOOLS.  265 

"School  District,  No.  9,  Fabius,  I 
"  Annual  meeting,  Oct.  5,  1835.      \ 

"  To  the  Superintendent  of  Common  Schools  of  the  State  of 
Neio-  York. 

"  For  a  number  of  years  past  we  have  uniformly  voted  at  our 
atinual  meetings,  that  the  amount  of  wood  used  for  the  winter 
school  be  put  into  the  school  bill,  and  apportioned  according  to 
the  number  of  days  each  proprietor  sent,  for  the  purpose  of  sav- 
ing the  trustees  the  trouble  of  calling  upon  each  individual  to 
furnish  his  quota  of  wood,  as  well  as  to  save  each  individual  the 
trouble  of  furnishing  so  small  an  amount  of  wood;  and  further, 
for  the  purpose  of  avoiding  a  new  apportionment  in  the  spring, 
as  the  number  of  scholars  and  days  proposed  vary  essentially 
from  the  number  of  scholars  and  days  actually  sent. 

"At  our  annual  meeting  in  1834,  the  following  votes  were 
passed : 

"  That  there  be  twenty  cords  of  good  hard  wood,  eighteen 
inches  long,  furnished  for  the  ensuing  year,  dec. 

"  That  E.  P.  Howe  have  the  contract  for  procuring  the  above 
mentioned  wood  at  five  shillings  per  cord,  «fcc. 

"  That  the  bill  for  wood  shall  be  included  in  the  school  bill. 

"  At  the  expiration  of  the  school  the  trustees  made  out  the  bill 
for  tuition,  and  also  in  a  separate  column  levied  the  wood  on 
the  taxable  property  of  the  district,  and  carried  out  the  tuition 
and  wood  in  a  'sum  total.'  Some  of  the  inhabitants  paid  their 
bills,  and  others  refused  to  pay  for  the  wood  when  assessed  on 
taxable  property :  and  as  the  tax  listwas  not  made  out  in  thirty 
days  after  the  vote  was  taken,  the  trustees  called  a  special  meet- 
ing '  for  the  purpose  of  choosing  a  collector  in  the  place  of  Fran- 
cis Batin  removed,  and  transacting  such  other  business  as  may 
come  before  said  meeting.'  Said  special  meeting  was  held  on 
the  13th  day  of  June  last,  at  which  time  the  following  votes  were 
passed  by  a  majority  of  two : 

"  That  E.  P.  Howe  be  chosen  collector,  &c. 

"  That  the  vote  taken  at  the  last  annual  meeting  relative  to 
jiiGcuring  wood,  be  rescinded. 

"  That  the  sum  of  $)15.18  be  raised  by  tax  on  the  taxable  in- 
habitants of  said  district,  for  the  wood  the  winter  past  and  re- 
pairs last  spring.  . 

"  The  trustees  immediately  made  out  the  tax  list  for  the  wood, 
and  gave  the  twenty  days  notice  required  by  law  when  the  valu- 
ations cannot  be  ascertained  from  the  last  assessment  roll  of  the 
town ;  but  previous  to  the  expiration  of  the  twenty  days  a  num- 
ber of  the  inhabitants  of  our  district  appealed  from  the  decision  of 
«aid  special  meeting  to  the  commissioners  of  common  schools  of 


4 

366  ^./«er,     .CASES    DECIDED    BY    THE 

our  town,  on  the  ground  that  the  object  of  the  meeting  was  riot 
explicitly  stated  in  the  notice ;  that  if  it  had  been  stated  in  the 
notice  that  other  business  would  positively  come  before  the  meet- 
ing, and  especially  that  a  tax  was  proposed  to  be  raised,  some  in- 
dividuals would  have  attended  who  did  not  attend. 

"The  commissioners  of  common  school* appointed  a  time  for 
hearing  the  case,  and  accordingly  met  at  the  time  appointed. 
After  hearing  the  arguments  for  and  against  said  appeal,  the 
commissioners  decided  '  that  in  their  opinion  the  proceedings  of 
said  special  meeting  were  illegal,'  since  which  time  the  trustees 
have  continued  to  collect  the  bill  for  tuition,  but  the  wood  re- 
mains uncollected  and  unpaid,  except  a  very  small  share. 

"  The  objections  urged  against  paying  for  the  wood  by  a  tax 
on  taxable  property,  are  the  following  : 

"  1st.  A  long  standing  custom  by  compromise  and  general 
consent  to  the  contrary. 

"2d.  One  of  the  taxable  inhabitants  of  our  district  since  the 
winter  school  closed  has  removed  into  an  adjoining  district,  and 
is  now  liable  to  be  taxed  there  for  the  property  which  he  held 
here. 

"  3d.  Two  taxable  inhabitants  of  our  district  have  moved  from 
another  county  into  this  district  since  our  winter  school  cloectl, 
and  paid  a  tax  in  that  county  for  school  wood  the  winter  past, 
on  the  same  property  on  which  they  would  now  be  taxed  here, 
the  law  making  it  the  duty  of  the  trustees  to  levy  the  tax  on  all 
the  property  owned  or  possessed  in  said  district  at  the  time  of 
making  out  the  tax  list. 

"  The  objections  urged  against  apportioning  the  wood  accord- 
ing to  the  number  of  days  sent,  are  the  following: 

"  Ist.  Some  of  the  inhabitants  who  sent  a  number  of  children 
to  the  winter  school,  have  since  removed  out  of  town,  and  one 
family  out  of  the  state,  and  the  wood  could  not  be  equitably  ap- 
portioned in  this  way,  unless  the  present  residents  who  sent  to 
that  school  should  be  willing  that  the  wood  be  paid  for  by  them 
in  proportion  to  the  days  sent,  to  which  some  would  not  now 
consent. 

"  2d.  The  teacher  of  the  winter  school  lost  his  roll  during  the 
winter,  and  it  has  recently  been  ascertained  that  he  made  out  a 
new  one  '  by  guess'  or  supposition.  This  fact  is  now  known 
to  the  district  generally,  and  many  who  are  in  favor  of  having 
the  wood  apportioned  according  to  the  number  of  days  sent, 
might  not  be  willing  to  pay  an  account  of  the  defect  in  the  roll ; 
at  least  some  of  the  district  would  probably  take  exceptions  on 
that  account. 

"  It  was  generally  expected  that,  after  the  decision  of  the  com 
missioners,  the  trustees  would  either  call  another  special  meeting 


SUPERINTENDENT    OP    COMMON    SCHOOLS.  267 

or  else  make  out  a  tax  for  the  wood  in  proportion  to  the  number 
of  days  sent,  agreeably  to  the  vote  taken  at  the  annual  meeting 
last  year,  neither  of  which  has  been  done. 

"AH  parties  agree  that  the  individual  who  furnished  the  wood 
ought  to  have  his  pay,  and  are  anxious  to  be  at  peace  in  the  dis- 
trict, but  as  yet  have  failed  to  devise  a  plan  to  suit  every  indi- 
vidual in  the  district. 

'•  The  trustees  contend,  that  the  manner  in  which  wood  has 
usually  been  furnished  for  the  district,  is  illegal;  that  the  law 
provides  only  two  ways  to  obtain  the  wood,  and  that  the  district, 
by  agreeing  in  school  meetings  for  a  certain  quantity  of  wood  at 
a  certain  price,  deprived  the  trustees  of  taking  the  second  course 
pointed  out  in  the  law,  and  consequently  they  were  compelled  to 
make  out  the  wood  tax  on  the  taxable  property. 

"  On  the  other  hand  it  is  contended,  that  the  uniform  course 
heretofore  pursued  in  our  district  was  virtually  the  second  course 
pointed  out  in  the  law ;  that  by  common  consent  it  has  been  the 
opinion  of  the  district  generally,  that  the  wood  should  be  appor- 
tioned '  on  the  scholar,'  and  that  the  course  usually  pursued  in 
our  district  has  been  resorted  to  solely  for  the  purpose  of  saving 
trouble. 

"  At  this,  our  annual  meeting,  we  have  agreed  to  the  forego- 
ing statement  of  facts,  and  voted  unanimously  that  it  be  signed 
by  the  officers  of  the  meeting,  submitted  to  you  for  your  decision 
thereon,  and  agree  to  abide  the  result. 

"  By  order  and  in  behalf  of  the  meeting. 

"  JOSIAH  ANDREWS,  Moderator. 

"Seneca  Smith,  Clerk. 

"  For  further  information  we  will  state  (without  particular  di- 
rection from  the  district,)  that  at  this,  our  annual  meeting,  we 
have  agreed  not  to  furnish  wood  the  ensuing  winter  by  a  tax  on 
the  taxable  property  of  the  district,  by  a  vote  of  13  to  9,  but  that 
we  will  procure  the  wood  in  the  manner  formerly  done  in  our 
district. 

"  You  are  requested  not  only  to  decide  in  what  manner  we 
shall  raise  the  pay  for  the  wood  used  last  winter  under  existing 
circumstances,  but  also  to  say  whether  it  is  legal  for  us  to  fur- 
nish our  wood  as  we  have  usually  done,  when  at  school  meet- 
ings we  surrender  into  the  hands  of  the  trustees  our  privilege  and 
right  of  being  called  upon  to  furnish  our  quota  of  wood :  the  dif- 
ference of  opinion  never  having  been  about  the  particular  man- 
ner in  which  wood  shall  be  assessed  on  the  scholar,  but  whether 
it  shall  be  assessetl  on  the  scholar  in  any  way,  or  by  tax  on  the 
taxable  property  ? 

"  You  are  requested,  if  possible,  to  attach  your  decision  to  this 
application  and  return  the  whole," 


268  '    '         CASES    DECIDED    BY    THE 

By  John  A.  Dix,  October  28,  1835.  I  have  examined  the 
statement  of  facts  presented  by  you  in  pursuance  of  a  vote  at 
the  annual  meeting  for  the  year  1835,  in  school  district  No.  9 
in  the  town  of  Fabius,  with  a  view  to  a  decision  of  the  ques- 
tions submitted  to  me.  I  cannot  comply  with  your  request  to 
return  the  statement.  It  must  be  preserved  in  my  office,  in  con- 
formity with  a  rule  adopted  by  my  piedecessor,  and  invariably 
adhered  to  by  me,  with  respect  to  all  communications  to  which 
answers  are  given. 

The  mode  in  which  the  trustees  undertook  to  provide  for  the 
payment  of  the  fuel  consumed  in  your  school  district  last  winter, 
was  altogether  illegal,  and  it  should  not  be  attempted  again. 
The  amount  due  for  that  object  might  have  been  included  in  the 
rate  bill,  if,  on  being  called  on,  the  inhabitants  had  not  provided 
it,  but  the  proportion  to  be  paid  by  each  inhabitant  of  the  dis- 
trict should  have  been  determined  by  the  number  of  days  his 
children  were  sent  to  school,  and  not  by  the  amount  of  his  tax- 
able property.  This  is  the  mode  prescribed  by  law,  and  there 
can  be  no  excuse  for  departing  from  it. 

There  is  but  one  way  in  which  the  fuel  provided  last  winter, 
can  now  be  paid  for,  and  that  is  by  the  collection  of  the  tax  vot- 
ed on  the  13th  June  last.  I  consider  the  proceedings  of  that 
meeting  legal.  The  notice  for  a  special  meeting  should  specify 
all  the  objects  of  the  meeting;  but  the  omission  to  set  them  forth 
does  not  render  the  proceedings  absolutely  void,  al( hough  it  af- 
fords a  ground  of  application  to  the  Superintendent  of  Common 
Schools  to  set  them  aside,  on  showing  surprise  on  the  part  of 
any  of  the  inhabitants.  If  the  omission  was  intentional,  the  pro- 
priety of  his  interposition  will  be  still  more  apparent.  But  no 
such  allegations  are  made  in  this  case. 

The  appeal  to  the  commissioners  of  common  schools  was  al- 
together unauthorized  by  law.  The  Superintendent  is  the  only 
tribunal  to  which  an  appeal  from  the  proceedings  of  school  dis- 
trict meetings  will  lie. 

It  appears  that  a  tax  levied  on  the  taxable  property  of  the  dis- 
trict now,  will  subject  two  inhabitants,  who  have  recently  mov- 
ed into  it,  to  an  imposition  from  which  in  equity  they  should  be 
exempt.  But  this  inconvenience  cannot  be  obviated.  The  fuel 
cannot  now  be  paid  for  by  a  rate  bill ;  and  if  it  could,  equity 
would  not  be  done,  as  some  who  ought  to  contribute  to  that  ob- 
ject have  removed  out  of  the  district,  to  say  nothing  of  the  man- 
ner in  which  the  teacher's  lists  were  made  out.  The  Uustees, 
as  the  representatives  of  the  district,  are  answerable  for  the 
amount  of  the  fuel ;  they  may  be  sued  ;  the  amount  recovered 
against  them  would,  by  the  Revised  Statutes,  be  allowed  in  their 
official  accounts;  and  if  they  had  no  funds  belonging  io  the  district 


SUPERINTENDENT    OF    COMMON   SCHOOLS.  269 

eut  of  which  they  could  indemnify  themselves  for  the  amount 
paid  by  them,  the  legislature  would  doubtless  direct  it  to  be  levi- 
ed on  the  taxable  property  of  the  inhabitants.  Thus  the  result 
would  be  the  same. 

The  inhabitants  may,  if  they  please,  make  up  the  amount 
now  due  for  fuel  by  voluntarily  contributing  what  each  one  fair- 
ly owes.  If  they  refuse,  the  tax  must  be  levied  on  the  taxable 
property  of  the  district.  The  tax  list  was  not  made  out  within 
one  month,  but  there  is  good  cause  for  the  omission  in  the  ap- 
peal, which,  though  misdirected,  must,  as  was  supposed,  be  deem- 
ed to  operate  as  a  stay  of  proceedings. 

If  you  provide  fuel  hereafter,  as  you  have  done  heretofore, 
there  may  or  may  not  be  difficulty,  according  to  circumstances. 
The  established  usage  in  the  district,  if  it  be  a  substantial,  is 
not  a  rigid,  compliance  with  the  law.  The  vote  of  the  inha- 
bitants at  the  annual  meeting,  proposes  to  dispense  with  that 
provision  of  the  statute  which  requires  the  trustees  to  call  on  each 
inhabitant  for  his  quota  of  fuel.  It  is  certainly  not  binding  on 
the  trustees,  nor  does  such  a  vole  authorize  them  to  proceed  in 
any  other  manner  than  that  which  is  pointed  out  by  the  law. 
They  may  still  make  the  call,  and  strictly  it  is  their  duty  to  do 
so.  If  they  neglect  it,  and  any  inhabitant  should  refuse  to  pay  his 
proportion  of  the  amount  due  for  fuel,  I  doubt  whether  the  col- 
lection could  be  enforced  against  him.  It  certainly  could  not, 
unless  his  consent  to  the  proceeding  could  be  shown.  In  de- 
parting from  the  course  prescribed  by  the  statute,  the  successful 
execution  of  a  trust  becomes  dependent  on  the  acquiescence  of 
others  ;  and  when  a  public  agent  undertakes  to  enforce  an  au- 
thority, he  should  be  careful  that  he  has  himself  taken  all  the 
steps  enjoined  on  him  by  the  statute,  which  confers  the  au- 
thority so  to  be  enforced.  The  object  in  giving  notices  to  each 
inhabitant  of  the  quota  of  fuel  to  lie  provided  by  him,  is  to  ena- 
ble him  .to  furnish  it  in  kind,  if  he  chooses,  and  (unless  a  tax 
is  voted,)  the  right  to  collect  the  amount  in  money  does  not  exist 
until  that  option  has  been  presented  to  him  in  the  mode  indi- 
cated by  the  statute.  You  will  perceive,  therefore,  that  you 
will  be  liable  to  difficulty  whenever  an  inhabitant  thinks  proper 
to  create  it,  by  refusing  to  pay  for  his  fuel,  and  shelters  himself 
under  the  irregular  proceeding  on  the  part  of  the  trustees ;  for  the 
vote  of  the  inhabitants  of  a  district  cannot  render  legal  a  depar- 
ture from  the  mode  of  procedure  prescribed^  by  law.  So  long  as 
all  acquiesce  in  a  course  which  is  certainly  the  most  convenient, 
and  may  be  altogether  unobjectionable  on  the  score  of  equity,  no 
trouble  is  to  be  apprehended;  but  if  any  one  chooses  to  contest 
the  legality  of  the  proceeding,  the  trustees  will  be  involved  in  dif- 


270  "  CASES    DECn)EDBY"THE 

ficulty.    The  only  course,  therefore,  which  is  safe,  under  all  cir- 
cumstances, is  the  one  pointed  out  by  the  law. 

The  Trustees  of  school  district  No.  6  in  the  town  of 
Yates,  ex  parte. 

Non-residents  are  t&xable  for  lands  used  as  pastures. 

The  facts  of  this  case  are  stated  in  the  Superintendent's  opinion. 

By  John  A.  Dix,  October  29,  1835.  Mr.  C.  lives  in  the 
town  of  Ridgeway,  and  owns  a  farm  there,  pays  taxes,  <fcc,  but 
owns  a  piece  of  land  in  the  town  of  Yates,  which  he  occupies 
for  pasturing,  ploughing,  &c.  separate  and  distinct  from  his 
farm.  He  has  no  house,  servant  or  agent  upon  it,  but  whatever 
is  done  upon  it  he  does  himself.  The  question  is;  Has  the 
school  district  in  the  town  of  Yates,  in  which  said  piece  of  land 
lies,  a  legal  right  to  tax  it  for  building  a  school-house? 

Answer.  There  is  no  doubt  about  it.  The  owner  may  be 
taxed  for  so  much  of  it  as  is  cleared  and  cultivated  ;  and  the  Su- 
perintendent has  always  held  that  a  piece  of  cleared  ground  used 
for  pasturing,  was  of  that  class  of  lands  for  which  a  non-resi- 
dent owner  may  be  taxed. 

The  Commissioners  of  Common  Schools  of  the  town 
of  Alexander,  ex  parte. 

When  a  school  district  is  dissolved,  the  value  of  the  school-house  and  other  pro- 
perty ought  to  be  distributed  among  the  inhabitants  according  to  their  taxaWe 
property 

In  this  case  a  school  district  was  annulled  and  set  off  to  other 
districts,  all  of  which  were  furnished  with  school-houses.  The 
question  submilted  was,  in  what  manner  the  school-house  and 
appendages  belonging  to  the  district  so  annulled  should  be  die- 
posed  of? 

By  John  A.  Dtx,  October  29,  1835.  No  provision  has  been 
made  by  law  for  the  case  about  to  occur  in  your  school  district. 
But,  where  a  district  is  dissolved  by  the  commissioners  of  com- 
mon schools  and  the  inhabitants  are  set  off  to  other  districts,  the 
proceeds  of  the  property  belonging  to  the  former  ought  to  be  die- 
tributcfl  amongf  the  inhabitants  according  to  their  taxable  proper- 
ty. It  is  the  taxable  property  of  the  district  that  has  provided 
the  school-house,  &c.  and  the  proceeds  of  the  sale  should  revert 
to  the  source  from  which  it  was  derived.  All  the  taxable  inhabi- 
tants would  of  course  participate  in  the  distiibution  in  ratio  of 
their  respective  possessions.  It  may  seem  unjust,  at  first  glance 
that  those  who  have  moved  into  the  district  since  the  school- 
house  was  built,  shmdd  receive  any  portion  of  its  value ;  but  it 


SUPERINTENDENT    OP    COMMON    SCHOOLS.  271 

is  possible  that  they  may  have  paid  an  increased  price  for  pro- 
perty in  (lie  district  on  account  of  the  school  privileges,  and  the 
rule  will  probably  prove  as  equitable  as  any  other  that  can  be 
adopted.  To  all  taxes  levied  for  cominon  school  purposes  in  the 
districts,  to  which  they  are  now  set  off,  they  will  contribute  in 
the  ratio  of  their  property,  and  for  this  reason  also  the  rule  of 
distribution  seems  reasonable.  It  is  manifestly  impracticable  to 
seek  out  ail  who  have  contributed  to  the  erection  of  the  house, 
whether  they  remain  in  or  have  removed  from  the  district,  and 
restore  to  each  his  just  quota  of  the  value  of  the  property. 

(anonymous.) 

If  an  annual  meeting  is  regularly  called  and  attended  by  only  four  persons  who, 
without  organizing,  agiee  to  meet  again  in  a  week,  the  second  meeting  is 
not  valid. 

If  an  annual  meeting  is  regularly  called  and  attended  by  four  persons,  who  or- 
ganize, and  without  transacting  any  other  business  adjourn  for  a  week,  the  pro- 
ceedmgs  are  valid  and  the  annual  election  may  be  held  at  the  adjourned 
meeting. 

School"?  must  be  kept  in  the  district  school-hou^e,  excepting  in  extraordinary 
cases. 

By  John  A.  Dix.  October  30,  1835.  A  statement  of  the 
cases  submitted  to  me  is  herewith  annexed  with  my  opinion. 

1.  At  an  annual  meeting  legally  notified  by  the  district  clerk, 
four  persons  only  attended.  1  he  clerk  was  absent,  and  the 
meeting  was  not  regularly  organized,  no  moderator  being  ap- 
pointed. The  four  who  were  present  agreed  to  hold  the  annual 
meeting,  in  one  week  from  that  time,  ^'he  taxable  inhabitants, 
or  a  major  part  of  them,  met  at  the  time  agreed  on,  organized 
the  meeting  and  elected  their  district  officers,  with  the  exception 
of  a  collector.  The  question  submitted  is.  whether  the  last  meet- 
ing was  legal? 

Answer.  It  was  not.  Nor  was  the  annual  meeting  legal.  The 
latter  was  not  organized,  nor  were  there  any  proceedings  whatever 
which  were  authorized  or  which  could  be  made  a  matter  of  re- 
cord. The  agreement  of  a  few  individuals,  assembled  without 
a'ny  form  of  organization,  to  hold  a  meeting  at  a  subsequent 
time,  could  not  give  validity  to  it  as  an  aHjourncd  meeting;  and 
as  the  latter  was  held  in  pursuance  of  that  agreement,  the  pro- 
ceedings were  altogether  void  and  without  efTect. 

2.  At,  an  annual  meeting  lea^ally  notified  by  the  district  clerk, 
four  persons  only  atteiu'ed.  The  clerk  was  absent.  The  meet- 
ing was  organized  by  appointing  a  moderator  and  a  clerk  pro  tem- 
pore. No  further  business  was  done,  but  the  meeting  was  adjourn- 
ed for  one  week  from  that  time  without  having  the  proceedings 
of  the  meeting  recoitled.  A  major  part  oftlie  inhabitants  met  in 
pursuance  of  the  adjournment  and  elected  their  district  officers, 


272  CASES    DECIDED   BY    THE     nffj^ 

witli  the  exception  of  a  collector.  The  question  submitted  is, 
whether  this  meeting  was  legal? 

Answer.  Yes.  The  annual  meeting  being  regularly  called 
and  organized,  the  persons  present  had  a  right  to  adjourn  to 
another  day.  The  inhabitants  of  a  school  district  may  exer- 
cise this  right  whenever  they  are  lawfully  assembled  at  any  dis- 
trict meeting.  The  adjournment  being  legal,  the  second  meet- 
ing held  in  pursuance  of  it,  was  also  legal,  so  far  as  respects  the 
right  to  hold  it.  District  officers  must  be  elected  at  the  annual 
meeting,  but  the  second  meeting  must  be  deemed  a  continuation 
of  the  annual  meeting,  an  adjournment  having  been  voted  in 
consequence  of  the  small  number  of  persons  present,  in  order 
to  procure  a  fair  expression  of  the  wishes  of  the  district.  The 
omission  on  the  part  of  the  proper  officer  to  put  the  proceedings 
of  the  first  meeting  on  record  does  not  affect  the  validity  of  those 
proceedings.  It  is  a  delinquency  for  which  the  responsible  per- 
sons are  highly  censurable ;  but  their  negligence  cannot  be  al- 
lowed to  prejudice  the  interests  of  the  district. 

3.  Can  a  pubUc  school  be  supported  in  such  a  manner  as  to 
obtain  the  public  money  in  any  place,  excepting  the  school- 
house  in  said  district,  when  a  majority  of  the  district  vote  for  it? 

Answer.  This  must  depend  on  circumstances.  A  school  can- 
not be  kept  in  any  other  place  than  the  district  school-house,  ex- 
cepting for  the  most  urgent  reasons.  Cases  may  occur  in  which 
it  is  not  only  proper,  but  necessary,  to  select  another  house  tem- 
porarily ;  but  they  are  certainly  rare,  and  when  they  do  occur, 
the  place  where  the  school  is  to  be  kept  must  be  designated  by 
vote  of  the  inhabitants. 

(anonymous.) 

If  a  School  district  is  altered,  the  site  of  the  school-house  may  be  changed,  by  a 
majority  of  votes,  aad  without  the  consent  of  the  commissioners  of  common 
schools. 

-  By  John  A.  Dix,  November  3,  1835.  If,  after  a  school- 
house  has  been  built  or  purchased,  the  district  is  altered,  the  site 
may  be  changed  and  the  school-house  removed  by  a  majority  of 
the  voters  present,  and  without  the  consent  of  the  commission- 
ers of  common  schools. 

By  reference  to  sub.  4,  sec.  61,  page  478,  1  R.  S.  you  will  ob- 
serve that  the  power  "  to  designate  a  site  for  the  district  school- 
house"  is  unlimited,  excepting  by  the  first  part  of  the  section, 
which  is  applicable  to  all  its  subdivisions :  and  by  subdivision  6, 
of  the  same  section,  the  power  "to  repeal,  alter  and  modify" 
proceedings  is  given. 

The  provisions  of  the  act  of  Feb.  17,  1831,  are  restrictions  on 
the  exercise  of  these  powers :  but  these  provisions  are  all  applica- 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  273 

ble  to  unaltered  districts ;  and  the  66th  section  of  the  revised  sta- 
tute relating  to  common  schools  having  been  repealed,  there  is 
no  restriction  as  to  fixing  or  changing  the  site  of  the  district  school- 
house,  in  districts  which  have  been  altered.  In  such  cases  the 
consent  of  the  commissioners  is  not  necessary,  nor  is  a  vote  of 
two-thirds  required.  In  other  words,  the  powers  ^iv€tt  by  nee. 
61,  before  referred  to,  may  be  exercised.      '  i/ni  V     r/i:,)  f«dJ  lo 

A.  B.  a  teacher  in  school  district  Nol^^^^-a^ii^  in  the 
town  of  New-Hartford,  ex  parte. 

^yrustees  must  settle  aH  accounts  arising  out  of  contracts  exec^ited  before  the 
expiration  of  their  term  of  ofBce. 
Trustees  in  office  must  sign  a  warrant,  in  order  to  give  it  validity. 

"In  this  case,  a  female  teacher,  employed  in  1834,  received  part 
of  her  wages,  and  the  balance  remained  unpaid,  when  the  trus- 
tees, who  contracted  with  her,  went  out  of  office.  Her  term  of 
instruction  ended  before  their  term  of  office  expired.  There  was 
no  dispute  as  to  the  amount  due  her.  The  only  questions  were^ 
who  should  make  out  the  rate  bills  and  sign  the  warrant. 

By  John  A.  Dix,  November  7,  1835.  The  Supeririteii- 
dent  has  always  required  trustees  of  school  districts  to  attend  to 
the  settlement  of  all  accounts  arising  out  of  contracts  executed 
before  the  expiration  of  their  term  of  office.  Thus,  if  the  term, 
for  which  the  female  teacher  referred  to  in  your  letter  was  em- 
ployed, expired  before  the  trustees  who  contracted  with  her  went 
out  of  office,  they  should  have  made  out  the  rate  bill  for  the  col- 
lection of  her  wages,  although  the  trustees  in  office  at  the  titne 
the  rate  bill  was  made  out  must  have  signed  the  warrant  in  or- 
der to  give  it  validity.  There  has  been  gross  negligence  in  post- 
poning the  collection  of  her  dues  to  the  pi^sent  time  :  but  I  think 
the  usual  course  proper  in  this  case,  notwithstanding  the  delay. 
The  trustees  in  office  when  her  term  expired  should  make  out  a 
rate  bill,  including  all  the  persons  who  sent  children  to  school 
during  that  term  and  \vho  have  not  paid  their  proportion  of  the 
amount  due  her  for  tuition.  To  this  bill  the  trustees  now  in  of- 
fice must  annex  their  \viarrant- 

The  Trustees  of  school  district  No.  1  in  the  towa^Qf 
^ '>a<f  a;ii  Q> -J  Veteran,  ex  parte.  ■■£- 

t'eraons  removing  from  a  district  after  a  tax  list  is  made  out  are  liable  for  their 
portion  of  the  tax. 

In  this  case  a  tax  list  was  made  out,  but  before  the  tax  could 
l»e  collected,  two  of  the  persons  included  in  the  list  removed 
from  the  district,  and  their  places  were  supplied  by  two  other 
persons  who  moved  into  the  houses  vacated  by  them.     The 

18 


274  .hji,-.,i  ,CASES    DECIDED    BV    THE     n:i'rj9 

f 

SuperiDtendetit  was  desired  to  state  whether  the  persons  so  re- 
moving were  liable  for  the  amount  due,  and  if  so,  how  the  collec- 
tion was  to  be  enforced  against  them. 

By  John  A.  Dix,  November  13,  1835.  The  persons,  who 
have  removed  from  your  district  since  the  tax  list  for  build- 
ing a  school-house  was  made  out,  are  liable  for  their  portion 
of  the  tax.  They  were  taxable  inhabitant  residing  in  the  dis- 
trict at  the  time  the  tax  list  was  made  out,  and  if  they  refuse  to 
pay,  and  the  collector  cannot  find  goods  and  chattels  in  their  pos- 
session, the  trustees  may  prosecute  them  for  the  amount  due. 
The  suits  must  be  brought  by  the  trustees  in  their  name  of  office. 
See  sec.  89  of  the  statute  relating  to  common  schools.  There  is 
no  other  mode  of  enforcing  the  collection  of  the  tax  against  the 
persons  referred  to.  The  individuals,  who  have  moved  into  the 
houses  vacated  by  them,  are  not  liable  for  the  amount  due  from 
them.  A  warrant  issued  by  the  trustees  of  a  school  district  ie  a 
lien  only  upon  the  goods  and  chattels  belonging  to  or  in  posses- 
sion of  the  persons  included  in  the  tax  list,  and  does  not  bind 
those  who  succeed  such  persons  in  the  occupation  of  their 
houses  or  farms, 

Xl?^€(  .jn^P^^QtcuT^  of  Common  Schools  of  the  town  of 

.fTitoJ  brH  ,1  ,»iiiiT  ,  Madison,  ex  parte. 

Three  inspectors  must  sign  a  certificate  of  qualification. 

A  separate  examination  of  a  teacher  by  three  inspectors  apart  from  each  is  not  a 
compiiance  with  the  law. 

This  was  an  application  for  the  opinion  of  the  Superinteifident 
in  a  case  in  which  three  inspectors  had  examined  a  teacher  se- 
parate and  apart  from  each  other,  and  had  given  him  a  certifi- 
cate of  qualification.  He  was  also  desired  to  state  whether  two 
inspectors  had  authority  to  examine  a  teacher  and  grant  a  certi- 
ficate. 

By  John  A.  Dix,  November  16,  1835.  The  signatures 
of  three  of  the  inspectors  of  common  schools  are  indispensable 
to  give  validity  to  a  certificate  of  qualification  for  a  teacher. 
Before  such  a  certificate  can  be  given,  three  inspectors  must  ex- 
amine him.  For  this  purpose  they  must  meet  together.  All 
these  formalities  have  been  held  to  be  essential  to  the  validity  of 
a  certificate.  I  do  not  recollect  that  a  case  similar  to  the  one  re- 
ferred to  in  your  letter  has  been  presented  to  me;  but  it  is  quite 
clear  that  an  examination  of  a  teacher  by  three  inspectors  apart 
from  each  other,  or  at  a  meeting  attended  by  two  inspectors  only, 
is  not  a  sufficient  compliance  w^ith  the  requirements  of  the  law. 

"HiT     Aimh  \<ii  bo^BOB'f  ft-.iiii(i  edi.oim  ivovoixf  oii^tf  wkikTwi< 

HI 


SUPEK1NTEK13ENT    OF    COMMON    SCHOOLS.  278 

(ANONYMOUS.) 
Errors  in  assessing  taxes  may  be  corrected  after  one  month. 

By  John  A.  t)ix,  November  17,  1835.  Errors  in  the  at^ 
isc-gsraent  of  taxes  for  school  district  purposes  *iia\^  be  corrected 
after  the  expiration  of  the  month  within  which  the  tax  lists  are 
required  to  l>e  made  out. 

The  Commissioners  of  Common  Schools  of  the  town 
of  CandoT,  ex  parte. 

An  alteratioTi  in  a  school  district,  made  without  evidence  of  the  consent  of  the 
trustees,  or  of  notice  to  them,  will  be  held  not  valid,  if  all  concerned  have  for 
five  years  acted  as  though  it  had  not  been  made.  l-' 

.  'in  this  case  an  alteration  in  a  school  district  was  made  by  tlve 
^commissioners  of  common  schools  of  the  town  of  Candor  and  re- 
corded, but  without  any  evidence  of  the  consent  of  the  trustees 
or  of  any  notice  to  them ;  and  for  five  years  no  iiotioe  had  been 
taken  of  the  alteration  by  the  trustees  or  any  of  the  parties  con- 
^>erned.  The  question  proposed  was,  whether  it  was  tp  be  ^«^, 
garded  as  a  valid  alteration. 

By  John  A.  Dix,  Novetither  19,  1835.  An  alteration  in  a 
school  distiict  regularly  made  and  recorded,  but  wilhout  any 
evidence  of  the  consent  of  the  trustees  or  of  any  «otice  to  them, 
will  not,  after  the  lapse  of  five  years,  be  deemed  valid,  if  during 
that  time  all  concerned  have  acted  as  though  no  alteration  had 
been  made.  The  fact  that  the  proceeding  has  been  wholly  dis- 
regarded, is  sufficieitt  to  raise  a  presumption  that  in <x)n sequence 
of  the  informaUty  refeiTed  to  «o  attempt  was  made  to  carry  it 
into  executioa. 

oil 

The  Commissioners  of  Common  Schools  of  the  town 
V  of  Orleans,  ex  parte. 

Commissioners  of  common  schools  are  entitled  to  such  compensation  for  their 
services  as  may  be  voted  by  the  inhabitants  of  the  town.     (But  see  note.) 

Commissioners  of  common  schools  cannot  charge  a  per  centage  on  the  school  mo- 
neys received  and  paid  over  by  them,  and  deduct  such  per  centage  from  those 
moneys. 

.'■^  The  following  is  a  communication  addressed  by  the  Superin- 

^  »      tendent  to  the  commissioners  of  common  schools  of  the  town 

of  Orleans,  on  discovering  by  their  annual  report  that  they  had 

deducted  from  the  public  moneys  received  and  paid  over  by  them 

a  commission  for  their  services. 

By  John  A.  Dix,  November  21,  1835,  I  perceive,  by  an 
examination  of  your  annual  report  of  the  common  schools  for 
the  present  year,  that  you  have  charged  a  commission  of  $2.42 


276  >!'»<>'•    kjASES    DECIDED    BY   THE      ■     -v  » 

OH  the  moneys  received  by  you  for  distribution  to  the  districts  in 
the  town  of  Orleans  in  April  last.  Such  a  charge  is  altogether 
illegal  and  without  precedent,  excepting  in  the  case  of  your  pre- 
decessors in  1834.  On  referring  to  last  year's  report  signed  by 
Messrs.  D.  A.  Aldrich,  Charles  Sexton  and  H.  W.  Bushnell.  1 
find  a  charge  of  $3,  as  a  commission  for  receiving  and  distri- 
buting the  school  moneys.  This  fact  escaped  my  notice  last 
year;  but  in  the  examination  of  more  than  800  reports  it  is,  per- 
haps, not  singular  that  it  was  overlooked,  aci '>..tj'  ii<>  )  r»ti?l^ 
I,  of  course,  do  not  doubt  that  this  commission  was  charged  un- 
der the  misapprehension  on  your  part  that  you  were  entitled  to  it. 
I  therefore  trust  that  it  will  be  promptly  refunded  as  soon  as  you 
are  apprized  that  it  was  illegally  taken.  The  only  mode  of  rec- 
tifying the  error  now  is  to  add  the  amovmt  charged  in  the  two 
years  1834  and  1835,  ($5.42,)  to  the  moneys  to  be  apportioned 
and  distributed  in  April  next  to  the  school  districts  in  your  town. 
I  shall  expect  to  find  this  item  in  the  next  annual  report  of  the 
town  of  Orleans.  You  are  entitled  to  such  compensation  for 
your  service^  as  the  inhabitants  of  the  town  think  proper  to  al- 
low;* but  you  cannot  pay  yourselves  out  of  the  school  moneys, 
and  there  is  no  authority  to  charge  a  eomitifssion,  for  receiving 
and  paying  out  those  moneys.  -  ' 

TjheVTfii§j;^ef  jpif  scliool  district  Nbrd'irvme'town  of 

*  •-?-'•  vi'   '   Le  Ray,  ex  parte. 

If  a  district  is  divided  immediatefy  after  the  school  moneys  are  distributed,  and 
the  persons  set  off  continue  to  send  to  school  in  the  district,  those  moneys 
;,  should  be  applied  for  their  benefit  in  common  with  other*. 

This  was  an  application  to  the  Superintendent  for  his  direc- 
tion under  circumstances  explained  in  his  order.  In  addition  to 
the  facts  contained  therein,  it  was  also  stated  by  the  trustees  of  dis- 
tiict  No.  3  that  the  inhabitants  of  the  new  district,  (No.  7,)  who 
had  continued  to  send  their  children  to  school  in  the  former,  re- 
fused to  pay  their  tuition  bills  unless  the  public  money  was  ap- 
plied in  reduction  of  their  dues;  and  the  question  was  submitted, 
whether  the  collector  could  distrain  their  property,  (they  being  ia- 
habitants  of  another  district,)  in  case  they  were  included  in  the 
rate  bill? 

By  John  A.  Dix,  November  23,  1835.  A  statement  has 
been  presented  to  the  Superintendent  of  Common  Schools  by  the 
tmstees  of  school  district  No.  3  in  the  town  of  Le  Ray,  setting 
forth  the  following  facts,  and  requesting  his  decison  thereon. 

*  By  an  act  passed  22d  April,  1837,  commissioners  of  common  schools  are  al- 
lowed one  dollar  per  day  for  every  day  actu^iy  and  neeejwanly  devoted,  to  their 
duties.  -  '  ""    . 


SUPERINTENDENT    OP   COMMON    SCHOOLS.  277 

On  the  14th  of  April,  1835,  a  new  district  was  formed  by  the 
commissioners  of  common  schools  under  the  name  of  district  No. 
7,  by  setting  off  a  part  of  districts  No.  3  and  No.  8.  The  pro- 
perty of  district  No.  3  was  appraised  and  apportioned,  and  the 
amount  due  the  new  district  was  paid.  No  division  was  made 
of  the  public  money,  which  had  just  been  paid  by  the  commis- 
sioners to  district  No.  3.  The  school-house  in  the  new  district 
is  not  y«t  completed,  and  the  inhabitants  of  No.  7  formerly  be- 
longing to  No.  3  have  continued  to  send  their  children  to  school 
in  the  latter  district,  A  rate  bill  to  pay  the  wages  of  the  teacher, 
who  has  been  employed  during  the  summer,  hsis  been  made  out, 
and  the  whole  of  the  public  money  appropriated  to  the  summer 
term  has  been  applied  for  the  benefit  of  the  inhabitants  of  No.  3. 

The  Superintendent  of  Common  Schools  has  repeatedly  de- 
cided that  the  public  money  in  the  hands  of  the  trustees  of  a 
school  district,  at  the  time  such  district  is  divided  to  form  a  new 
one,  must  be  equitably  shared  by  the  respective  parts  tiius  sepa- 
rated from  each  other.  It  should  have  been  treated  as  a  com- 
mon fund,  in  the  case  imder  consideration,  and  divided  accord- 
ing to  the  number  of  children  between  5  and  16  years  of  age. 
There  is  no  law  which  makes  such  a  proceeding  a  part  of  the 
duty  of  the  commissioners  of  common  schools  in  the  division  of 
a  school  district,  and  it  is,  therefore,  not  to  be  regarded  as  aii 
error  ori  their  part.  Public  money  is  not  to  .be  considered  as 
'•  property"  within  the  meaning  of  section  67  of  the  statute  re- 
lating to  common  schools.  If  it  were  so,  the  amount  due  the 
new  district  would,  under  section  69,  be  levied  upon  the  taxable 
property  of  the  district  possessing  it,  which  would  be  manifestly 
unjust.  But  it  has  always  been  treated  by  the  Superintendent 
as  a  fund  held  in  trust  for  the  benefit  of  all  the  inhabitants  of 
Uie  district,  until  it  is  legally  expended,  and,  therefore,  proper  to 
be  equitably  divided,  (although  there  is  no  express  legal  provi- 
sion to  that  effect,)  whenev^  a  part  of  the  inhalaitants  are  set  off 
to  form  a  new  district.*  -^'i  '.wni  •>!>'  lut 

The  principle,  however,  does  not  extend  lo  (i&ses  where  the  mo- 
ney has  been  appropriated  by  a  vote  of  the  inhabitants  to  a  term 
which  has  expired  previous  to  the  division  of  the  district.  The 
case  under  consideration  is  not  of  this  character.  The  question 
concerns  the  disposition  of  public  money  applicable,  at  the  time 
of  the  division,  to  the  term  next  succeeding  it. 

The  mode  of  providing  the  necessary  relief  in  this  case  would 
be  obvious,  if  there  was  not  a  disposition  on  the  part  of  the  trust 

•See  the  cases  of  the  trustees  of  school  district  No.  4  in  the  t'>wn  of  Cobles- 
kill,  page  125,  and  the  trustees  of  school  district  No.  &  in  the  same  town,  page 
187.  ■;  >a-....K    - 


■*.* 


,,  ^,'  CASES    DECIDED    BY    THE 

teea  oT  district  No.  5  to  do  all  that  justice  demands.  The  Sti- 
perintendent  would  require  the  amount  to  which  distriGt  No.  7  ii=» 
fairly  entitled  to  be  deducted  out  of  the  next  public  moneys  to  be 
apportioned  to  No.  3,  and  paid  to  the  trustees  of  the  former  dis->' 
trict.  But  the  whole  question  having  been  submitted  tc  him  by 
the  trustees  of  No.  3  he  will  proceed  to  direct  what  justice  seems 
to  him  to  require. 

It  may  not  be  impiopei'  to  say,  lieforogiviag  the  necessary  di- 
rection, that  the  right  of  the  collector  to  execute  a  warrant  with- 
out the  bounds  of  his  district  in  this  ease  is  justly  called  in  ques- 
tion by  the  inhabitants  of  No.  7.*  If  this  position  is  correct,  the 
only  remedy  will  be  for  the  trustees  of  No.  3  to  prosecute  the 
non-residents  in  their  name  of  office,  unless  they  pay  volunta- 
rily the  amount  due  from  them  respectively.  This  course  will 
\ye  extremely  troublesome,  and  p^ajr  ^t>,  i«  every  case,  accom- 
plish the  ends  of  justice,  .  ,,  ,.  ,    .>,,,;;  ..,^ 

On  the  other  hand,  it  is  supposed  that  the  inhabitants  of  No. 
7,  who  have  sent  (heir  children  to  school  in  No.  3  during  tl>e 
summer  term,  will  pay  the  amount  of  their  school  bills  without 
objection,  if  they  are  allowed  to  participate  equally  with  the  in- 
habitants of  No,  3  ill  the  benefits  of  the  public  money,  and  thus 
indirectly  to  enjoy  what  they  were  fairly  entitled  to  receive. 
Should  any  refuse  to  pay,  there  will  be  no  alternative  left  to  the 
ti'ustAt^,^  £^0.  3;Jb^  to  prc^secute,ihe!i>i)£»f  th^  aiBount  of  their 

bills.  ..firie^-  '■.{Ij^Im  T^*'   i»-,'i  '■•-.         ••■■':/,.  ■.^.•  -.,;(  ,;-  ■'    /    \ 

It  is  accordingly  ordered,  that  the  trustees  of  district  No.  3 
proceed  immediately  to  make  out  a  new  rate  bill  for  the  collec- 
tion of  the  wages  of  the  teacher  who  taught  the  summer  term. 
The  public  moneys  will  first  be  applied  to  the  object,  and  th* 
residue  will  be  assessed  equally  upon  all  who  have  sent  children 
to  school,  in  proportion  to  the  number  of  days  so  sent.  If  any 
of  the  inhabitants  of  No.  3  have  made  payments  under  the  rate 
ImU  already  made  out,  credit  will  be  given  to  them  for  the  amount 
of  such  payments  on  the  new  rate  bill,  and  a  direction  will  be 
givci>,to  ^he,  9)UtJutQr,wcordingly. 

The  Commissioners  of  Common  Schools  of  the  town 
"  of  Sodus,  ex  parte, 

Treasarers  of  counties  cannot  deduct  from  the  school  moneys  the  commission  of 
.  ,  ~   •  ;    one  per  cent  to  which  they  are  entitled. 

Tbejtfeasurer  of  the  county  of  Wayne  had  for  several  years, 
as  appeared  by  testimony  produced  before  the  Superintendent. 

'  •  See  the  case  of  the  trustees  of  school  district  No. in  the  town  ef  Witte-^ 

borough,  decided  March  6,  1837.  ".s 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  279 

been  in  the  habit  of  deducting  from  the  school  moneys  paid  over 
by  him  to  the  several  towns  in  his  county,  the  commission  al- 
lowed him  by  law.  The  opinion  of  the  Superintendent  as  to 
his  right  to  do  so  was  requested. 

By  John  A.  Dix,  November  26,  1835.  Treasurers  of  coun- 
ties have  no  right  to  deduct  from  the  amount  of  the  school  mo- 
^  neys  apportioned  to  each  town  by  the  Superintendent  of  Com- 
mon Schools  a  commission  of  one  per  cent.  They  are  unques- 
tionably entitled  to  such  a  commission,  under  sec.  26,  page  370, 
1  R.  S.,  on  the  moneys  received  and  paid  by  them  for  the  use 
of  the  common  schools,  but  they  have  no  right  to  diminish  the 
amount  of  the  moneys  placed  in  their  hands  for  distribution,  un- 
der a  special  apportionment  by  the  Superintendent.  The  commis- 
sion referred  to  is  a  charge  upon  the  county,  and  not  upon  the 
common  school  fund.  See  sub.  1,  sec.  3,  p.  385,  1  R.  S.  County 
treasurers  are  required  to  hold  "  the  amount  apportioned"  to  each 
town,  subject  to  the  order  of  the  commissioners  df  common 
lichools  of  such  town.  See  sec.  14,  page  469,  1  R.  S.  By  the 
order  of  apportionment,  the  town  of  Sodus  in  Wayne  county,  is 
entitled  to  $183.80  per  annum.  Has  the  town  received  that 
amount?  Certainly  not;  and  the  requirements  of  the  law  have 
not  been  fulfilled. 

In  providing  for  raising  on  the  towns  a  sum  equal  to  that 
which  they  severally  receive  from  the  common  school  fund,  the 
fees,  which  the  collector  is  to  receive  as  his  compensation,  are  to 
be  added  to  the  sum  first  mentioned.  See  sec.  17,  page  469,  1 
R.  S.  This  is  clearly  intended  to  guard  against  any  diminu- 
tion of  the  amount  to  go  into  the  hands  of  the  commissioners 
of  common  schools,  and  thus  to  make  the  sum  levied  on  the 
f  town  and  paid  to  them  precisely  equal  to  the  sum  received  by 
them  from  the  county  treasurer.  If  the  county  treasurer  retains 
his  commission  out  of  the  moneys  received  b}'  him  from  the  com- 
mon school  fund,  the  amount  paid  by  the  town  will  exceed  the 
amount  paid  by  the  common  school  fund  ;  whereas  it  was  in- 
tended that  they  should  be  equal.  Without  a  special  provision, 
therefore,  authorizing  the  county  treasurer  to  retain  his  commis- 
sion out  of  the  moneys  appropriated  to  and  paid  into  his  hands 
for  the  support  of  the  common  schools  in  the  county,  he  can- 
not do  so  consistently  with  the  requirements  of  the  statute  before 
cited.  The  commission  charged  by  the  treasurer  on  moneys  re- 
ceived and  paid  by  him,  is  his  compensation  for  the  services  which 
he  renders  as  a  county  officer.  The  amount  of  the  commission 
is  a  charge  upon  the  county  treasury ;  and  the  board  of  super- 
visors should  add  it  to  the  amount  to  be  raised  for  defi-aying  ac- 
counts chargeable  against  the  county.  The  amount  retained 
by  the  treasurer  of  Wayne  county  for  several  years  past  out  of 


m- 


nr 


280  "  "  CASES    DECIDED    BY    THE 


1>31  »i  "C 


the  school  moneys,  ought  to  be  refunded  to  the  towns,  and  I 
have  no  doubt  the  board  of  supervisors  would,  on  a  representa- 
tion of  the  facts,  cause  to  be  levied  by  tax  an  amount  sufficient 
for  the  purpose. 

The  Trustees  of  school  district  No.  4  in  the  town  of 
'^"^l  ^''  Darien,  ex  parte. 

District  officers  duly  elected  cannot  be  displaced  at  an  adjourned  meeting  on  a 
reconsideration  of  the  choice  before  made. 

In  this  case  the  annual  meeting  in  school  district  No.  4  in  the 
town  of  Darien  was  held  at  the  appointed  time  and  place,  offi- 
cers for  the  district  were  chosen  for  the  ensuing  year,  and  the 
meeting  was  then  adjourned  for  five  days.  At  the  adjourned 
meeting  the  choice  of  officers  was  reconsidered  and  rescinded, 
and  other  persons  Avere  chosen  in  their  place.  The  Superinten- 
dent was  requested  to  state  whether  the  proceedings  at  the  ad- 
journed meeting  were  legal. 

By  John  A.  Dix,  November  27,  1$35.  The  district  officers 
elected  at  your  annual  meeting  on  the  5th  October  are  lawfully 
in  office,  if  that  meeting  was  legally  organized  and  conducted, 
and  they  cannot  be  displaced  by  a  reconsideration  of  their  ap- 
pointment at  an  adjourned  meeting.  The  inhabitants  had  a 
right  to  adjourn  to  another  day,  if  they  could  could  not  complete 
their  business.  But  a  legal  election  once  consummated  cannot 
be  brought  up  for  reconsideration  at  a  subsequent  meeting  of  the 
inhabitants  and  set  aside. 

The  Trustees  of  school 'district  No. in  the  town 

of  Arkport,  ex  parte.  % 

A  tax  cannot  be  voted  for  globes  and  school  apparatus. 

This  was  an  application  to  the  Superintendent  for  his  opinion 
as  to  the  propriety  of  raising  a  tax  for  purchasing  globes  and 
school  apparatus  imder  the  provision  of  law  which  authorizes 
the  inhabitants  of  school  districts  to  furnish  school-houses  wilh 
necessary  appendages. 

By  John  A.  Dix,  November  27,  1835.  The  inhabitants  of 
school  districts  have  no  right  to  lay  a  tax  upon  their  property  lor 
purchasing  globes  and  apparatus  for  the  use  of  their  schools. 
These  are  not  among  the  enumerated  objects  for  which  they  are 
authorized  by  law  to  vpte  taxes ;  nor  can  globes  and  school  ap- 
paratus be  considered,  however  desirable  they  may  be,  as  ''ne- 
cessary appendages"  to  a  school-house.  I  regret  that  you  should 
have  any  difficulty  on  this  score,  as  the  spirit  which  the  inhabi- 
tants of  your  district  have  manifested  in  attempting  to  elevate 


1^^ 


^V-.> 


srPERlNTENDENT    OF    COMMON    SCHOOLS.  281 

the  character  of  their  school,  reflecU  great  credit  upon  them. 
They  must,  however,  go  a  step  further,  as  the  statute  affords 
them  no  aid,  and  carry  out  by  voluntary  contribution  what  they 
have  commenced. 

.'ij 

The  Trustees  of  school  district  No.  5  in  the  town  df 
Catlin,  ex  parte. 

From  the  1st  of  September  to  the  meeting  of  the  board  of  supen'isors  the  assess- 
ment roll  of  the  town  in  the  hands  of  the  supervisor  must  be  consulted  in  as- 
sessing taxes  in  school  districts. 

If  a  warrant  is  issued  to  collect  a  tax  which  has  not  been  assessed  accordiijg  to 
the  last  assessment  roll  of  the  town,  and  property  is  taken  and  sold,  the  trus- 
tees who  issued  the  warrant  are  answerable  as  trespassers:  but  the  warrant  is 
a  complete  protection  to  the  collector  who  executes  it. 

On  the  first  Tuesday  of  October,  1835,  a  tax  was  voted  in 
school  district  No.  5  in  the  town  of  Catlin  to  purchase  a  district 
library,  and  the  tax  list  was  made  out  by  the  trustees  from  the 
town  assessment  roll  for  the  year  1834.  The  question  submit- 
ted was,  whether  this  could  be  deemed  the  last  assessment  roll  of 
the  town? 

By  John  A.  Dix,  December  1,  1835.  Tax  lists  must  be 
made  out  according  to  the  last  assesment  roll  of  the  town.  The 
Superintendent  of  Common  Schools  has  decided  that  the  assess- 
ment roll  of  the  town,  when  signed  and  certified  according  to  the 
provisions  of  the  26th  section  of  title  2d,  chap.  13,  1  R.  S.  page 
394,  is  to  be  considered  as  "  the  last  assessment  roll  of  the  town." 
This  roll  is,  by  the  provisions  of  section  27,  same  page,  to  be  de- 
Uvered  to  the  supervisor  of  the  town,  on  or  before  the  first  day  of 
September,  to  be  delivered  by  him  to  the  board  of  supervisors  at 
their  next  meeting.  From  the  first  of  September,  therefore,  to 
the  day  on  which  the  supervisors  meet,  the  roll  can  be  consulted 
in  the  hands  of  the  supervisor  of  the  town,  by  the  trustees  of 
school  districts.  The  board  of  supervisors  meets  in  your  county 
the  Tuesday  next  after  the  general  election,  which  is  in  No- 
vember. The  meeting  at  which  the  tax  referred  to  in  your 
letter  was  voted,  was  held  on  the  first  Tuesday  of  October. 
The  assessment  roll  in  the  hands  of  the  supervisor  should  have 
been  consulted. 

The  supreme  court  in  the  case  of  Alexander  and  others  vs. 
Hoyt,  7  Wend.  89,  held  that  trustees  of  school  districts  were  an- 
swerable as  trespassers  where  property  had  been  taken  under  a 
warrant  issued  for  the  collection  of  a  tax,  which  was  not  assessed 
according  to  the  last  assessment  roll  of  the  town.  It  is  extreme- 
ly important,  therefore,  that  they  should,  in  the  assessment  of  tax- 
es, confine  themselves  strictly  within  the  directions  of  the  statute. 


882  .»|flr>H'CAaES    1>ECII>BD    by    the    :JI5i<I7« 

It  is  proper  to  add  that  the  court  held  in  the  same  case  tlVaC 
the  warrant  was  a  complete  protection  to  the  collector  in  a  suit 
brought  against  him  for  taki»g  and  selling  the  property,  on  the 
principle  that  a  ministerial  officer  executing  process  issued  by  a 
tribunal  having  jurisdiction  of  the  subject  matter  is  Jiot  a  tres- 
passer though  that  tribunai,err  in  ^bis  exercise  of  its  diitfies.* 

(anonymous.) 

€ontract3  by  trustees  with  a  teacher  for  his  wages  are  binding  on  their  succes- 
sors in  office. 

'  fiy  JoilN^  A.  Dix,  December  16,  1835.  Contracts  between 
the  trustees  of  a  school  district  and  a  teacher  for  his  wages  are 
binding  on  the  successors  of  such  trustees.  Thus  a  contract 
with  a  teacher  to  instruct  the  district  school  for  six  months  is 
not  vacated  if  the  trustees  who  made  it  go  out  of  office  before  th« 
expiration  of  that  period,  and'  their  successors  are  bound  to  see  it 
fulfilled.t 

There  may  be  cases  of  gross  misconduct  on  the  part  of- a 
teacher  which  would  justify  the  latter  in  dismissing  him;-  but 
this  depends  pi?  ^  .diffejEent;  prinoigler  .  . .  \     , .    i 

Tjhf.Tiwstees  of  school  district  No.  9  m:  the  town  of 
n<     '!  Otstflic,  ex pctrte. 

Taxes  should  be  promptly  collected. 

If  a  tax  is  voted  in  express  terms,  and  a  direction  subsequently  given  as  to  the 
time  and  manner  of  collecting  it^  the  direction  is  void. 

In  this  case  a  tax  of  $120  was  voted  to  build  a  school-house, 
m  October,  1835.     After  the  tax  was  voted  a  resolution  was  of- 

■ ; . — _ 

.•  •  In  the  case  of  Suydam  and  Wyckoff  vs.  Keys,  13  Johns.  444,  it  was  held  by 
the  supreme  court,  that  the  collector  of  a  school  district  was  liable  as  a  trespasser 
in  taking  property  under  a  warrant  issued  by  the  trustees  for  the  collection  of  a  tax, 
where  certain  non-residents  not  liable  to  taxation  had  been  included  in  the  tax 
list.  The  principle  on  which  this  decision  was  made  was,  that  the  authority  of 
the  trustees  was  special  and  limited,  and  that  the  subordinate  officer  was  bound  to 
see  that  he  acted  within  the  scope  of  the  legal  powers  of  those  who  oommuided 
him. 

This  doctrine  has  been  overturned  by  the  decision  of  the  court  in  the  case  of 
Sacavool  vs.  Boughton,  5  Wendell  170,  in  which  it  is  settled  that  "  if  the  sub- 
ject matter  of  a  suit  is  within  the  jurisdiction  of  a  court,  but  there  is  a  want  of 
jurisdiction  as  to  the  person  or  place,  the  oflBcer  who  executes  process  issued  in 
such  suit  is  no  trespasser,  unless  the  want  of  jurisdiction  appears  by  such  pro- 
cess." 

Thus  if  the  trustees  of  a  school  district  should  include  in  a  tax  list  persons  not 
liable  to  be  included  in  it,  and  the  collector  should  take  and  sell  the  property  of 
such  persons  by  virtue  of  the  warrant  directed  to  him  for  the  collection  of  tho 
tax,  the  warraiit  would  be  a  protection  to  him,  although  the  trustees  would  be 
answerable  in  trespass  to  the  injured  parties.  ,  , 

t  This  principle  is  settled  by  the  supreme  court,  in  the  case  of  iSilver  rs!  CJutn- 
mings  and  others.     7  Wendell,  page  181. 


•^ 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  283 

fered  and  carried  that  the  tax  should  not  be  collected  until  the 
ensuing  1st  of  April^  and  that  lumber  delivered  before  that  time 
on  the  site  of  the  school-house  might  be  received  in  part  payment 
©f  the  tax.  The  legality  of  this  direction  to  the  tnistees  being 
doubted,  the  opinion  of  tlie  Superintendent  was  asked. 

By  John  A.  Dix,  December  31,  1835.  Taxes  for  school 
district  purposes  should  always  be  promptly  collected.  They 
bind  only  goods  and  chattels  in  possession  of  the  taxable  inha- 
bitants residing  in  the  district  at  the  time  of  making  out  the  tax 
list,  which  must  be  coiini|)leted  within  one  month  after  the  tax  is 
voted.  If  the  collection  of  the  tax  is  delayed  six  months  as  pro- 
posed in  your  distiict,  and  any  of  your  taxable  inhabitants  should 
move  out  of  it^  the  property  on  which  the  taxes  of  such  persons 
were  estimated  could  not  be  reached,  and  the  district  might  be 
without  remedy  against  them  or  the  persons  coming  into  posses- 
sion of  that  property.  The  Superintendent  has^  therefore^  al- 
ways required  taxes  to  be  collected  immediately  when  questions 
of  this  sort  have  been  brought  before  him.  If  a  tax  is  voted  un- 
conditionally and  in  express  terras,  and  the  inhabitants  proceed 
afterwards  to  give  their  diiection  to  the  trustees  as  to  the  time 
or  manner  of  collecting  it,  the  latter  are  not  bound  by  such  direc- 
tion. The  law  points  out  the  mode  in  which  the  tax  shall  be  col- 
lected, and  the  trustees  must  be  governed  hy  its  requirements. 
A  vote  to  pay  a  tax  in  any  thing  but  money  is  void  and  of  no 
effect. ,  If  a  condition  as  to  the  mode  of  collecting  it  is  annexed  to 
the  vote  or  resolution  by  which  it  is  authorized,  so  as  to  constitute 
a  part  of  such  vote  or  resolution,  I  incline  to  think  the  whole  pro- 
ceeding void.  ;h>  T...    I . :•■    vtg  7   fTT  11  ::i,/ 

^  (anonymous.)/    V    I  -   frf" 

't'nistees  should  call  a  special  meeting  when  recjtiiested'  by  a  respedttbl^'liim^ 
ber  of  the  inhabitants.  :  ^'  "'  iiO.O 

l^Y  John  A.  Dix,  January  1,  1836.  Trustees  shoiild  al- 
ways call  a  special  meeting  of  the  inhabitants  of  a  school  dis- 
trict when  requested  by  a  respectable  number  of  the  inhabitants. 
The  latter  have  a  right  to  repeal,  alter  or  modify  their  proceed- 
ings at  district  meetings;  but  how  shall  they  exercise  this  power 
if  the  trustees  refuse  to  call  them  together  for  the  purpose?  The 
Superintendent  will  always,  on  showing  sufficient  cause,  order  a 
meeting  when  the  trustees  refuse  to  do  so.  In  case  of  an  appli- 
oation  to  him  for  the  purpose,  the  tiustees  must  have  notice  of  it.* 

~  ^  ,  t   j;  lit 

!,.  *  See  the  case  of  Caleb  N.  Potter  and  others,  ,page^  147.         .    ..^  t 

*     ♦    u 


i 


284  sinoH'CABEs  decided  By  the  <,iia*!  Je 

The  Trustees  of  school  district  No. ^^in  the  town 

of  Concord,  ex  parte. 

If  trustees  neglect  to  raise  and  pay  over  the  amount  apportioned  to  a  new  district, 
tiieir  successors  in  office  must  luake  out  a  tax  list  and  collect  tljke  amount  so 
apportioned.  )  ;  i  .  ;>  •  ■.  r- 

School  district  Nov in  the  town  of  Concord  was  divided 

and  a  new  district  formed.  The  school-house  in  said  district 
was  appraised  by  the  commissioners,  and  the  amount  to  be  paid 
to  tlie  new  district  as  its  proportion  of  the  value  of  the  school- 
house  was  ascertained.  '^The  trustees  neglected  to  collect  the 
amount  due  to  the  new  district  during  their  continuance  in  of- 
fice ;  and  the  question  proposed  to  the  Superintendent  was, 
whether  it  was  the  duty  of  their  successors  in  office  to  make  put 
a  tax  list  for  the  purpose,  and  pay  over  the  amount  so  due?  , 

By  JoiiN  A.  Dtx,  January  6,^  1836.  Where  the  trustees  in 
office,  at  the  time  the  school-house  and  property  of  a  district  are 
appraised  by  the  commissioners  of  common  schools  in  forming  a 
new  district,  neglect  to  make  out  a  tax  list  and  collect  the  amount 
apportioned  to  such  new  district,  their  successors  in  office  are 
l3ound  to  do  it,  precisely  as  though  the  apportionment  had  been 
made  during  the  term  of  service  of  such  successors. 

.^  l3^.^  taxable  inhabitant  of  school  district  No.- 

i>«  hix-tfu  :   in  the  town  of  Vienna,  ex  parte. 

The  provision  exempting  from  taxation  for  building  a  school-house  persons  who 
have  within  four  years  paid  a  tax  for  the  purpose  in  another  district,  from 
which  they  have  been  set  off  without  their  consent,  does  not  extend  to  taxes 
voted  to  furnish  a  school-house  with  necessary  appendages. 

In  this  case  A.  B.  was  set  off  without  his  consent  from  a 
school  district,  in  which  he  had  paid  a  tax  for  building  a  school- 
house  within  four  years.  A  tax  was  immediately  afterwards 
laid  in  the  district,  to  which  lie  was  annexed,  for  purchasing  a 
stove  and  some  other  necessary  appendages  to  the  school-house. 
The  question  presented  to  the  Superintendent  was,  whether  A. 
B.  was  exempt  from  a  tax  voted  for  such  a  purpose  under  the 
provision  exempting  persons  set  off  under  similar  circumstances 
from  contributing  to  the  erection  of  a  school-house? 

By  John  A.  Dix,  January  7,  1836.  I  am  of  opinion  that 
the  provision  of  sec.  81,  page  483,  1  R.  S.  which  exempts  from 
the  payment  of  any  tax  for  building  a  school-house,  every  taxa- 
ble inhabitant  who  shall  have  paid  such  a  tax  within  four  years, 
in  a  district  from  which  he  has  been  set  off  without  his  consent, 
does  not  extend  to  appendages  to  a  school-house.  I  am  disposed 
to  construe  the  provision  liberally ;  but  I  do  not  think  the  exemp- 
tion can  be  extended  so  far  as  to  include  the  objects  of  taxation 


**^- 


9  'Iv 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  285 

referred  to,  when  the  language  of  the  statute  in  all  cases,  relat- 
ing to  school-houses  and  their  appendages  is  taken  into  consi- 
deration. In  every  such  case  appendages  appear  to  be  dis- 
tinctly mentioned  when  they  are  intended  to  be  referred  to,  and 
J  am  not  aware  of  any  instance,  in  which  they  can  be  deem- 
ed to  be  included  in  a  provision  in  which  the  school-house  on- 
ly is  named.  This  position  is  confirmed  by  the  language  of 
section  83,  (the  second  section  following  the  one  before  referred 
to,)  in  which  a  tenant  may  charge  the  owner  of  the  land  occu- 
pied by  him  with  the  amount  of  a  tax  paid  by  him,  under  cer- 
tain circumstances,  for  building,  repairing  or  purchasing  a  .school 
house,  or  for  furnishing  it  with  necessary  fuel  and  appendages. 
It  appears  evident  to  me,  therefore,  that  the  law  exeinpts  you 
from  nothing  more  than  a  tax  for  the  school-house,  and  that  you 
may  be  required  to  contribute  for  every  other  authorized  object 
of  taxation, 

(anonymous.)  «rKwfj' sJliO 

The  Superintendent  will  not  give  opinions  to  be  used  in  court  , 

By  John  A.  Dix,  Jmmary  8,  1836.  The  Superintendent 
is  requested  to  answer  certain  questions  in  such  a  manner  that 
bis  opinion  may  be  used  in  court.  He  cannot  comply  with  this 
request.  If  the  questions  in  dispute  had  been  brought  before 
him  for  adjudication,  he  would  dispose  of  them  at  once ;  but  as 
they  have  been  carried  into  the  courts,  he  has  no  control  over 
tliem,  nor  would  it  be  decorous  on  his  part  to  give  an  opinion 
in  a  s|)ecial  case  for  the  purpose  of  influencing  the  judicial  de- 
cision about  to  be  pronounced  upon  it. 

The  Trustees  of  school  district  No.  17  in  the  town  of 
V.  Le  Ray,  ex  parte.  ju  U-  -^ 

tf  a  taxable  inhabitant  sells  his  farm  and  remains  in  the  district,  he  is  Halite  Yo'fee 
taxed  on  the  amount  of  the  purchase  money  paid  or  secured  to  be  paid  as 
.  personal  property,  and  the  purchaser  is  taxable  for  the  farm  according  to  its 
*■  assessed  value  on  the  last  assessment  roll  of  the  town. 

On  the  30th  of  November  1835,  Mr.  Walker  moved  into 
school  district  No.  17  in  the  town  of  Le  Ray,  and  purchased 
of  Mr.  Lawrence,  for  the  sum  of  $3,600,  a  farm  which  on  the 
last  assessment  roll  of  the  town  was  valued  at  ^750.  Mr.  Wal- 
ker paid  ^1,500,  at  the  time  of  the  purchase,  and  gave  securities 
for  the  balance,  S2,100.  Mr.  Lawrence  continued  to  reside  in 
the  district.  On  the  19th  of  December,  1836,  a  tax  was  voted  to 
liuild  a  school-house.  In  making  out  the  tax-list,  the  trustees 
of  the  district  assessed  Walker  for  $750,  the  value  of  the  farm 
as  ascertained  by  the  last  assessment  roll  of  the  town,  and  Law- 


*^ 


Ji*. 


m  ^ 


'4^ 


X^lt: 


286  -    '^<"    CASES    DECIDED   BY    THE 

Tence.for  !§3,600  the  amount  ol"  the  purchase  money  paid  and 
isecured  to  be  paid  to  him  for  the  farm.  The  Superintendent 
was  requested  to  state  whether  the  assessment  was  properly  made. 

By  John  A.  Dix,  January  11,  1836.  The  assessment  of 
the  property  of  Messrs.  Lawrence  and  Walker  is  according  to 
the  requirements  of  the  law,  and  I  see  no  reason,  either  in  law 
or  equity,  for  reducing  the  amount  as  to  either.  •  The  only  in- 
justice in  the  case  is  that  Mr.  Walker  should  be  taxed  to  the 
amount  of  J$750  only,  for  property  which  he  has  just  purchased 
for  !i^,600.  But  this  cannot  be  avoided,  the  value  being  fixed 
by  the  last  assessment  roll  of  the  town. 

So  much  of  the  purchase  money  as  heis  been  paid,  and  the 
amount  of  the  securities  in  Mr,  Lawrence's  possession  for  the 
payment  of  the  balance,  are  personal  property,  and  are  liable  to 
be  taxed  as  such.  The  district  has  gained  by  the  sale  of  his 
farm  the  amount  of  the  purchase  money  in  taxable  property : 
but  if  Mr.  Lawrence  had  removed  from  the  district  after  selling 
out,  there  would  have  been  nothing  gained,  and,  indeed  there 
would  have  beeti  a  loss,  if  Mr.  Walker's  personal  property,  after 
deducting  his  debts,  (and  the  balance  of  .S^2, 100  due  for  the  farm 
is  to  be  considered  as  a  debt,)  were  less  than  Mr.  Lawrence's  per- 
sonal property  deducting  his  debts.  The  only  way  in  which  the 
district  could  be  a  gainer,  would  be  by  Mr,  Lawrence's  remaining 
in  it,  as  he  has  done. 

(anonymous.) 

A  warrant  runs  from  its  delivery  and  not  from  its  date. 

A  collector  cannot  sell  property  after  the  expiration  of  his  warrant 

By  John  A.  Dix,  January  11,  1836.  The  time  for  execut- 
ing a  w£irrant  runs  from  the  time  of  its  delivery  to  the  collector, 
and  not  from  its  date.     See  sec.  88,  page  484,  1  R.  S. 

If  a  collector  makes  a  levy  before  the  expiration  of  the  time 
limited  for  the  return  of  the  warrant,  he  cannot  sell  after  the 
expiration  of  that  time,  unless  the  warrant  is  renewed.  Thus 
if  he  takes  property  on  the  twenty-eighth  day  after  the  delivery 
of  the  warrant  to  him,  and  immediately  gives  six  days'  notice 
of  sale,  he  catmot  sell  at  the  end  of  the  six  days,  unless  he  pro- 
cures a  renewal  of  the  warrant,  as  he  is  commanded  to  make  his 
return  within  thirty  days. 

^The  Trustees  of  school  district  No.  in  the 

'  town  of  Stillwater,  ex  parte. 

4L  tax  to  purchase  a  school  district  library  rannot  be  voted  at  a  meeting  of  which 
no  notice  is  required  by  law  to  be  given. 

At  the  annual  meeting  in  school  district  No. in  the  town 

.  -■>       "-  * 


* 


w 


SUPERINTENDENT    OF   COMMON    SCHOOLS.  287 

of  Stillwater,  the  propriety  of  raising  a  sum  of  money  by  tax  for 
the  purpose  of  purchasing  a  library  for  the  district  was  informal- 
ly considered,  and  after  some  discussion  the  meeting  was  ad- 
journed for  two  weeks.  In  the  mean  time,  the  clerk  of  the  dis- 
trict put  up  notices,  stating  that  a  meeting  would  be  held  at  the 
appointed  time  and  place  for  the  purpose  of  voting  a  tax  to  pur- 
chase a  district  hbrary.  The  meeting  was  held,  and  a  tax  of 
.$20  was  voted  for  the  purpose.  The  question  presented  to  the 
Superintendent  was,  whether  a  tax  could  be  legally  voted  at 
such  a  meeting  ? 

By  John  A.  Dix,  January  13,  1836.  The  proceedings  of 
the  meeting  at  which  a  tax  was  voted  to  purchase  a  school  dis- 
trict library  were  illegal,  so  far  as  that  vote  is  concerned,  for  want 
of  a  proper  notice. 

The  provision  in  the  act  relative  to  the  purchase  of  sc^hool 
district  libraries  requiring  a  notice  of  intention  to  lay  a  tax  to  be 
given,  was  not  in  the  bill  as  originally  reported,  but  was  insert- 
ed by  way  of  amendment,  and  the  effect  of  it  appears  to  me 
to  be,  that  no  tax  for  that  purpose  can  be  laid  excepting  at  a 
meeting,  of  which  a  notice  is  required  by  law  to  be  given. 
Thus,  such  a  tax  cannot  be  voted  at  an  adjourned  meeting, 
unless  the  adjournment  is  for  more  than  one  month,  because 
no  notice  is  required  to  be  given  for  a  meeting  adjourned  for 
a  shorter  time.  The  notice  given  in  this  case  not  being  in 
pursuance  of  any  legal  requirement,  cannot  be  considered  as 
having  any  valid  effect.  Such  a  tax  may  be  voted  at  an  annu- 
al meeting,  if  the  intention  to  propose  it  be  inserted  in  the  notice, 
or  it  may  be  voted  at  an  adjourned  meeting  for  more  than  one 
mouth,  provided  such  notice  of  intention  is  given.  It  may  of 
course  be  done  at  a  special  meeting,  the  notice  in  this  case  being 
by  personal  service.  The  meeting  at  which  the  tax  was  voted 
in  your  district,  is  precisely  the  meeting,  at  which  such  a  tax 
cannot  be  voted  at  all. 

The  Inspectors  of  Common  Schools  of  the  town  of 
■')'  Coxsackie,  ex  parte. 

Commissioners  and  inspectors  of  common  schools  are  entitled  to  such  compen- 
'^'sation  as  may  be  voted  by  the  electors  of  the  town  at  their  ajinua]  town  meet- 
A'ing.    (But  see  note.)  j  <<h  I'jiioi 'IJ  *::>' 

This  was  an  application  to  the  Superintendent'  for-  fiis  opinioii 
as  to  the  authority  of  the  board  of  supervisors  of  a  county  to 
make  an  allowance  to  commissioners  and  inspectors  of  common 
schools  for  their  services. 

By  John  A  Dix,  January  15,  1836.  The  electors  of  each 
town  have  power  at  their  annual  meeting,  to  establish  the  com- 


'm  dc 


288  ■MOoa^cASEs  decided  by  the   "  '  •" 

pensation  of  coiwmissioners  and  inspectors  of  common  schools. 
See  laws  of  1830,  chap.  320,  sec.  1.  Has  your  town  passed  a 
vote  on  this  subject?  If  so,  the  amount  fixed  by  it,  must  govern 
the  board  of  supervisors  in  auditing  your  account.  If  no  such 
vole  has  been  passed,  it  should  be  done  at  the  next  annual  meet- 
ing of  the  town  ;  for  I  doubt  whether  the  supervisors  can  alk)w 
any  thing  as  a  compensation  to  commissioners  and  inspectors  of 
common  schools,  unless  the  rate  is  established  as  provided  by  law. 
With  respect  to  the  collector  of  the  town,  it  is  different.  He 
cannot  have  more  than  five,  nor  less  than  three  per  cent.  But 
in  reference  to  the  officers  before  mentioned,  the  law  has  fixed 
no  minimum  rate  of  compensation.  It  is,  therefore,  left  wholly 
to  the  discretion  of  the  electors  of  the  towns;  and  if  they  vote 
nothing,  I  do  not  see  how  those  officers  can  be  allowed  any 
thing.* 

(anonymous.) 

Trustees  cannot  transfer  to  teachers  the  authority  of  prosecuting  individuals  for 
'"  tuition  bills.  But  trustees  must  collect  their  dues  by  a  rate  bill,  notwithstand* 
f  ing  an  agreement  *n  the  part  of  the  teacher  to  collect  them  himself. 

By  John  A.  Dix,  January  20,  1836.  Trustees  of  school 
districts  cannot  transfer  to  teachers  the  right  of  prosecuting  indi- 
viduals for  their  tuition  bills.  The  trustees  are  responsible  for 
the  payment  of  their  wages,  and  the  teachers  should  look  to 
them  alone.  If  the  teacher  agrees  to  collect  his  own  dues,  it  is 
right  that  he  should  do  so  to  the  extent  of  his  ability ;  but  1 
have  always  held  that,  in  case  of  a  refusal  on  the  part  of  the 
individuals  indebted  to  him  to  pay  their  dues,  the  trustees  should 
issue  a  rate  bill,  and  direct  the  amoimt  so  due  to  be  collected, 
notwithstanding  any  agreement  with  the  teacher  to  the  contra- 
ry. The  justice  of  such  a  decision  is  manifest.  The  teacher 
^ixontracts  with  the  trustees  to  teach  the  district  school,  and  he  is 
Entitled  to  the  aid  of  the  authority  which  the  law  has  deposited 
with  theiD,  for  the  purpose  of  enforcing  the  payment  of  his  dues 
from  the  inhabitants  of  the  district.  They  will  not  be  allowed 
to  make  a  contract  with  a  view  to  transfer  this  responsibility  to 
the  teacher,  and  deprive  the  latter  of  the  legal  remedies  which 
the  law  has  provided  for  him.  If  those  who  are  indebted  to 
the  teacher  do  not  pay  him  voluntarily,  the  sums  due  him  must 
be  collected  in  the  mode  prescribed  by  law.  >. 

, ._ . ___ ^-T^ 

*  By  the  5th  section  of  the  act  of  22d  April,  1837,  commissioners  of  common 
schools  are  allowed  "  one  dollar  per  day  for  every  day  actually  and  necessarily 
devoted  by  them  in  their  official  capacity  to  the  service  of  the  town  for  which 
(hey  may  be  chosen,  the  same  to  be  paid  in  like  manner  as  other  town  officers 
wejwd."  ^    ......  .    „ ,      .,^.„  ^„       „\.,. 


-m: 


fj 


\ 


SUPERINTENDENT    OF  COMMON   SCHOOLS.  289 

The  Trustees  of  school  district  No.  3  in  the  town  of 
Walkill,  ex  parte. 

Annual  meetings  need  not  be  precisely  one  yew  apart  to  a  day. 

This  was  an  application  to  the  Superintendent  for  his  opinion 
as  to  the  power  oi  the  inhabitants  of  school  districts,  to  fix  the 
time  for  their  next  annual  meeting-  on  a  day  more  oi'  less  than 
a  year  from  the  day  on  which  the  last  was  held. 

By  John  A.  Dix,  January  23,  1836.  I  have  received  yout 
letter  inquiring  whether  an  annual  meeting  can  be  fixed  at  a 
shorter  period  than  one  year  from  the  time  at  which  the  previ- 
ous annual  meeting  was  held  ?  I  do  not  think  it  indispensable 
that  annual  meetings  should  be  exactly  a  year  apart  to  a  day. 
The  time  may  be  a  few  days  or  weeks  more  or  less  than  a  year 
if  the  inhabitants  think  it  necessar}'-.  For  instance,  an  annual 
meeting  held  on  the  first  Tuesday  of  Octobei-  may  be  adjourned 
to  the  second  Tuesday  of  October  of  the  next  yean  The  proprie- 
ty of  the  act  in  every  case  must  depend  upon  the  circumstances 
attending  it.  No  general  rule,  as  to  the  extent  of  the  variation 
from  a  year,  can  be  laid  down  as  applicable  to  all  cases. 

The  Trustees  of  school  district  No.  9  in  the  town  of 
Paris,  ex  "parte. 

The  inhabitants  of  school  districts  cannot  vote  a  tax  to  provide  fuel  for  singing  ^ 

schools. 

In  school  district  No.  9  in  the  town  of  Paris,  a  singing  schod 
was  held  in  the  school-house  two  evenings  in  the  week,  and  it 
had  been  customary  in  warming  the  house  on  those  evenings  to 
use  the  fuel  provided  for  the  school.  The  propriety  of  using  the 
fuel  for  this  purpose  was  discussed  at  a  meeting  of  the  inhabi- 
tants, and  a  tax  was  voted  by  a  large  majority  to  furnish  as 
much  wood  as  was  required  for  the  purposes  of  the  district  school 
and  the  singing  school.  To  this  proceeding  objections  were 
made  by  a  few  of  the  inhabitants,  and  the  opinion  of  the  Su- 
perintendent was  solicited  as  to  its  legality. 

By  John  A.  Dix,  January  30,  1836.  There  is  no  authority 
to  use  fuel  provided  by  tax  on  the  inhabitants  of  school  districts, 
for  any  other  purpose  than  that  of  the  district  school.  If  every 
inhabitant  in  a  district  were  to  vote  in  favor  of  raising  a  tax  to 
buy  wood  for  singing  schools,  it  would  be  illegal.  The  law  has 
specified  the  objects  foJi  which  the  inhabitants  of  school  districts 
may  vote  taxes  on  their  property,  and  they  cannot  exceed  the 
limits  of  the  authority  thus  conferred  on  them. 

>-  --        ,19 


290  vJ<H/ii'  CASES    DECIDED   BY    THE        -.      - 

The  Trustees  of  school  district  No. in  the  t6wn 

of  Fallsburgh,  ex  parte. 

A  tax  cannot  be  laid  to  erect  a  building  to  be  occupied  jointly  as  a  scbool-hou»e 
and  a  meeting-house. 

In  this  case  a  tax  of  $400  was  voted  to  aid  in  the  construc- 
tion of  a  house  to  be  occupied  during  week  days  for  the  purpo- 
ses of  the  district  school,  and  for  holding  religious  meetings  on 
Sunday.  The  balance  of  the  sum  required  to  construct  it  was 
to  be  raised  by  subscription.  Doubts  having  arisen  as  to  the  le- 
gality of  this  proceeding,  the  opinion  of  the  Superintendent  was 
requested. 

By  John  A.  Dix,  March  9,  1836.  The  resolution  of  the 
inhabitants  of  your  school  district  to  unite  with  certain  persons 
to  build  a  house  for  the  joint  purpose  of  keeping  a  school  and 
holding  religious  meetings,  and  to  lay  a  tax  on  the  district  for 
the  purpose,  is  illegal,  and  cannot  be  carried  into  execution. 
The  Superintendent  of  Common  Schools  has  long  since  decided 
tliat  there  can  be  no  partnership  in  school-houses,  which  will 
prevent  their  being  controlled  entirely  for  common  school  pur- 
poses. 

The  Commissioners  of  Common  Schools  of  the  town 
of  Greene,  ex  parte. 

School  district  libi-aries  are  intended  for  the  use  of  all  the  inhabitants  of  the  dis-  \ 
trict. 

The  right  of  taking  books  from  the  library  cannot  be  restricted  to  scholars  at- 
tending the  district  school. 

The  inhabitants  may  direct  the  librarian  not  to  deliver  a  book  to  a  person  who  has 
not  returned  one  previously  taken  out  by  him,  or  until  he  has  paid  for  any 
injury  it  may  have  sustained. 

The  following  questions  were  proposed  for  the  decision  of  the 
Superintendent  by  the  commissioners  of  common  schools  of  the 
town  of  Greene: 

1.  Are  school  district  libraries  intended  for  the  common  schools 
primarily,  or  for  the  inhabitants  of  the  districts  ? 

2.  Can  the  inhabitants  of  a  district,  at  a  legal  meeting,  re- 
strict the  use  of  the  books  to  the  scholars  attending  the  district 
school? 

3.  If  a  book  be  lost,  or  destroyed,  or  so  damaged  as  to  render 
it  unfit  for  use,  can  the  value  of  the  book  be  collected  from  the 
person  in  whose  possession  it  was  when  it  was  lost,  destroyed,  or 
damaged  ? 

By  John  A.  Dix,  March  9,  1836.  School  district  libraries 
are  intended  for  the  inhabitants  of  school  districts ;  as  well  for 
those  who  have  completed  theit  common  school  education,  as 


* 


SUPERINTENDENT    OF   COMMON    SCHOOLS.  291 

for  those  who  have  not.  The  primary  object  of  their  institution 
was  to  disseminate  works  suited  to  the  intellectual  improvement 
of  the  great  body  of  the  people,  rather  than  to  throw  into  school 
districts  for  the  use  of  young  persons  works  of  a  merely  juvenile 
character. 

The  books  being  procured  by  a  tax  on  the  property  of  the 
district,  no  unnecessary  restriction  should  be  imposed  on  their 
circulation  among  the  inhabitants.  The  regulations  to  be  made 
by  the  inhabitants  should  relate  principally  to  their  custody  arul 
preservation. 

I  doubt,  therefore,  the  right  of  the  inhabitants  to  restrict  the 
choice  of  books,  to  be  taken  from  the  library  for  perusal,  to  scho- 
lars attending  the  district  school.  They  may  have  the  privilege 
of  drawing  them,  if  the  inhabitants  adopt  such  a  rule ;  but  1 
think  any  such  rule  must  be  subject  to  the  right  of  any  inhabi- 
tant to  take  from  the  library  for  perusal  any  book  in  it — the  time 
and  manner  of  taking  and  returning  it  to  be  regulated  by  the 
voice  of  the  districL 

If  a  book  be  destroyed  or  damaged,  tliere  is  no  power  in  tlie 
district  to  make  the  person  so  destroying  or  damaging  it  pay  for 
it.  It  would,  however,  be  competent  for  the  inhabitants  to  di- 
rect the  librarian  not  to  deliver  a  book  to  a  person  who  had  not 
returned  one  previously  taken  out  by  him,  or  until  he  had  made 
reparation  for  any  injury  it  may  have  sustained  while  in  his 
hands.  -r 

The  Trustees  of  school  district  No. in  the  town 

of  Homer,  ex  parte. 

Taxable  inhabitants  only  can  be  included  in  tax  lists. 

If  a  person  moves  into  a  district  after  a  tax  list  is  made  out,  he  cannot  be  includ- 
ed in  it. 

If  a  person  removes  from  a  district  after  a  tax  liet  is  made  out,  he  may  be  prose- 
cuted for  his  part  of  the  tax  if  Jie  does  not  pay  voluntarily. 

In  school  district  No.  — in  the  town  of  Homer,  a  tax  of 

.*$100  was  voted  to  build  a  school-house,  and  at  a  subsequent 
meeting  of  the  inhabitants  an  additional  tax  of  ^120  was  voted 
for  the  same  purpose.  After  the  tax  of  ^ICK)  was  assessed,  and 
before  the  tax  of  $120  was  voted,  A.  B.  sold  his  farm  to  C.  D., 
and  moved  out  of  the  district.  C.  D.  moved  into  the  district  af- 
ter the  tax  of  jjplOO  was  assessed  and  before  the  tax  of  $120  was 
voted.  The  question  proposed  was,  whether  A.  B.  and  C.  D. 
were  liable  to  pay  their  proportion  of  either  or  both  taxes  ? 

By  John  A.  Dix,  March  14,  1836.     No  person  can  be  in- 
cluded in  a  tax  list  unless  he  is  a  taxable  inhabitant  residing  in 
the  district  at  the  time  the  tax  list  is  made  out.     Thus,  if  two  . 
taxes  are  voted  at  different  times,  one  of  .i^lOO  and  another  of 


*'^^; 


292  CASES    DECIDED   BY   THE 

$120,  and  after  the  first  is  assessed  an  inhabitant  removes  from 
I  the  district,  and  before  the  second  is  assessed  his  place  is  suppli- 

ed by  another  inhabitant,  the  person  moving  out  of  the  district 
cannot  be  made  to  pay  any  portion  of  the  second  tax  of  $120, 
nor  can  the  person  taking  his  place  be  made  to  pay  any  portion 
of  the  first  tax  of  $100.  But  the  person  first  referred  to,  al- 
though he  has  removed  from  the  district,  can  be  prosecuted  (un- 
less he  pays  voluntarily)  for  that  portion  of  the  tax  of  $100  as- 
sessed on  him  while  he  was  an  actual  inhabitant  of  the  district. 

The  Commissioners  of  Common  Schools  of  thetowrs 
of  Westfield,  ex  parte. 

If  fhere  are  but  two  commissioners  of  common  schools  in  office,  they  may  act 
as  such  until  a  third  is  appointed. 

In  the  town  of  Westfield  one  of  the  persons  elected  as  com- 
missioners of  common  schools  declined  serving.  The  vacancy 
was  not  supplied  by  the  proper  authority,  and  the  two  other  com- 
missioners transacted  the  ordinary  business  of  the  town  in  rela- 
tion to  the  common  schools  during  the  year.  Among  other  act? 
performed  by  them,  was  the  organization  of  a  new  school  dis- 
trict. The  right  of  two  commissioners  to  act  until  a  third  wae^ 
appointed  having  been  called  in  question,  the  opinion  of  the  Su- 
perintendent was  solicited.  ', 

^*«*  "■  By  JoHx  A.  Dix,  March  14,  1836.  When  one  of  the  com- 
missioners of  common  schools  refuses  to  serve,  the  two  others 
may  act  until  a  third  is  appointed.  The  vacancy  should  have 
been  filled  in  the  mode  prescribed  by  law  ;  but  you  are  not  re- 
sponsible for  the  omission,  and  your  powers,  with  respect  to  all 
matters  within  your  jurisdiction,  are  as  ample  as  they  would  be 
if  the  board  was  full  in  point  of  numbers.  Any  attempt  to  va 
cate  your  proceedings  on  that  ground  will  be  fruitless. 

The  Trustees  of  school  district  No. — —  in  the  town 
of  Petersburgh,  ex  parte. 

A  person  hiring  out  his  services  for  a  limited  period  to  an  inhabitant  of  a  school 
district,  must,  if  of  age,  be  deemed  a  resident  of  the  district,  unless  he  has 
a  family  and  domicil  elsewhere. 

The  last  assessment  roll  of  the  town  is  not  a  guide,  in  making  out  a  tax  list,  as 
to  a  person  who  became  an  inhabitant  of  the  district  after  the  roll  was  made 
"'  out. 

In  this  case  an  individual  came  into  school  district  No. iri 

*S      the  town  of  Petersburgh,  and  hired  out  his  services  for  a  limited 

period  to  an  inhabitant  of  the  district.     The  individual  so  hir- 

.  ing  out  his  services  had  no  family  or  domicil  elsewhere,  but  had 

personal  property  worth  more  than  fifty  dollars  over  and  above 


4    ,4-*^ 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  293 

such  as  is  exempt  by  law  from  execution.  He  moved  into  the 
district  after  the  last  assessment  roll  of  the  town  was  completed, 
and  was  not,  of  course,  included  in  it.  The  question  presented 
to  the  Superintendent  was,  whether  he  could  be  included  in  the 
assessment  of  a  tax  voted  to  build  a  school-house  ? 

By  John  A.  Dix,  March  22,  1836.  A  person  hiring  out 
his  services  for  a  limited  period  to  an  inhabitant  of  a  school  dis- 
trict, must  be  considered  as  a  resident  of  the  district,  if  he  is  of 
age,  unless  he  has  a  family  and  domicil  elsewhere.  It  is  not 
necessary  that  his  name  should  be  on  the  last  assessment  roll  of 
the  town,  in  order  to  make  him  liable  to  be  taxed.  The  trustees 
must  see  that  every  taxable  inhabitant  residing  in  the  district  is 
included  in  the  tax  list.  The  last  assessment  roll  of  the  town  is 
io  be  consulted  only  so  far  as  valuations  of  property  are  concerned :  y 
and  it  is  not  a  guide,  from  the  necessity  of  the  case,  where  a 
person  has  become  an  inhabitant  of  the  town  and  the  district 
subsequently  to  the  time  of  its  completion.  In  every  such  case 
the  trustees  must  make  a  valuation  of  the  property  of  the  per- 
sons coming  into  the  district,  giving  notice  in  the  manner  re- 
quired of  town  assessors  in  making  valuations  of  taxable  pro- 
perty. 

The  Trustees  of  school  district  No.  1  in  the  town  of 
Nanticoke,  against  the  Commissioners  of  Common 
Schools  of  said  town. 

if  a  man  is  employed  in  a  school  district  in  taking  care  of  a  mill  from  fall  till 
spring,  his  children  must  be  enumerated  in  the  district 

The  facts  of  this  case  are  stated  in  the  Superintendent's  opi- 
nion. The  question  submitted  was,  whether  the  children  of  the 
person  referred  to  in  the  statement  presented  to  the  Superinten- 
dent could  be  enumerated  in  district  No.  1  in  the  town  of  Nan- 
ticoke. 

By  John  A.  Dix,  March  25,  1836.  The  Superintendent  of 
Common  Schools  has  received  a  statement  submitted  by  the 
trustees  of  school  district  No.  1  in  the  town  of  Nanticoke,  and 
the  commissioners  of  common  schools  of  said  town,  in  the  fol- 
lowing words : 

''  In  the  aforesaid  district  is  the  following  property,  viz  :  A  saw- 
mill and  a  dwelling-house  owned  by  a  non-resident  of  the  town, 
the  mill  doing  business  say  four  months  in  a  year.  The  owner 
employs  a  man  in  the  fall  to  attend  to  the  concerns  about  the 
mill,  who  occupies  the  house  till  spring,  and  then  removes. — 
Are  the  children  of  parents  coming  into  the  district  under  such 
circumstances,  residents  under  the  school  law?" 

The  children  of  the  person  living  on  the  premises  from  fall 


294  -'-  '^  CASES    DECIDED    BV   THE 


Altnouffh  his> 


mitil  spring-  must  he  enumeratetl  in  the  district.'  Although 
residence  is  not  permanent,  he  is  an  actual  resident  of  the  dis- 
trict on  the  31st  of  December,  and  if  his  children  are  not  enume- 
rated there,  it  is  manifest  that  they  cannot  be  in  any  other  dis- 
trict in  the  state. 

The  Commissioners  of  Common  Schools  of  the  town 
•j,  of  Corinth,  ex  parte. 

If  a  teacher  is  taken  sick,  and  another  cannot  be  procured  in  time  to  have  the 
school  kept  three  months,  the  Superintendent  will,  on  showing  the  facts,  al- 
low the  district  a  share  of  the  public  money. 

In  this  case  a  qualified  teacher  was  employed  in  the  fall  of 
1835,  in  school  district  No.  7  in  the  town  of  Corinth,  but  after 
teaching  several  weeks  be  was  taken  sick,  and  was  compelled 
to  give  up  the  school.  The  trustees  immediately  endeavoured 
to  procure  another  teacher,  but  they  did  not  succeed  in  time  to 
have  the  school  taught  three  months  by  a  qualified  teacher  be- 
fore the  1st  of  January,  1836.  The  trustees  made  a  full  state- 
ment of  the  facts  in  their  annual  report  to  the  commissioners  of 
common  schools,  who  set  apart  and  retained  in  their  hands  the 
amount  of  money  to  which  the  district  would  have  been  entitled 
if  a  school  had  been  kept  in  it  three  months  during  the  preced- 
ing year  by  a  qualified  teacher,  and  referred  the  case  to  the  Su- 
perintendent for  his  decision. 

By  John  A.  Dix,  Apy^l  11,  1836.  I  have  received  your 
statement  in  relation  to  school  district  No.  7  in  the  town  of  Co- 
rinth. The  case  is  one  which  demands  the  interposition  of  the 
Superintendent  of  common  schools  in  order  to  save  the  equitable 
rights  of  the  district.  The  deficiency  in  respect  to  the  time  dur- 
ing which  a  school  was  kept  by  a  qualified  teacher,  was  occa- 
sioned by  a  causf^ver  which  the  trustees  of  the  district  had  no 
control.  Their  intention  to  comply  with  the  requirements  of  the 
law  was  frustrated  by  necessity  :  no  diligence  or  exertion  on  their 
part  was  wanting,  and  the  district  must  not  suffer.  You  were 
right  in  referring  the  matter  to  the  Superintendent;  and  you  are 
accordingly  authorizecl  to  pay  the  trustees  the  public  money  re- 
tained in  your  hands. 

The  Commissioners  of  Common  Schools  of  the 
town  of  York,  ex  parte. 

Separate  neighborhoods  can  only  be  set  off  to  form  districts  with  the  inhabitant* 
of  adjoining  states. 

In  consequence  of  a  difficulty  in  one  of  the  schools  districts  in 
thcgypwn  of  Yorkj^be  con(inij^i(^;^s  of  CQp^mipn  sc^hpols  of  the 


^ 


SUPERINTENDENT    OF   COMMON    SCHOOLS.  295 

lown  set  off  a  part  of  the  inhabitants  as  a  separate  neighborhood. 
No  part  of  the  town  or  the  county  of  which  it  was  a  part  was 
adjacent  to  the  territory  of  another  state.     The  question  present- 
ed by  the  commissioners  to  the  Superintendent  was,  whether  in       1 
this  proceeding  they  had  acted  without  legal  authority? 

By  John  A.  Dix,  April  12,  1836.  Separate  neighborhoods 
can  only  be  set  off  for  the  purpose  of  forming  districts  with  in- 
habitants of  an  adjoining  state.  The  proceeding  of  the  com- 
missioners in  the  case  referred  to,  was,  of  course,  illegal.  They 
have  a  right  to  form  a  new  district,  and  in  such  case,  the  school- 
house  may  be  appraised,  so  that  the  persons  set  off  to  the  new 
district  may  have  their  proportion  of  its  value.  ^|fii « 

The  Trustees  of  school  district  No.  8  in  the  town  of   ^ 
Nichols,  ex  parte.  ]^* 

If  a  new  district,  formed  with  the  consent  of  the  trustees  of  the  districts  from 
which  it  was  taken,  has  gone  on  in  good  faith  to  build  a  school-house,  and  a 
school  has  been  kept  ten  months,  irregularities  in  its  formation  will  not  be  no- 
ticed, after  the  lapse  of  two  years,  if  the  record  of  the  proceedings  of  the 
commissioners  in  forming  it  is  regular,  and  no  appeal  has  been  made. 

Commissioners  of  common  schools  will  not  be  permitted  to  deny  the  legal  exist- 
ence of  a  district  when  their  own  records  show  it  to  have  been  regularly 
formed. 

In  April,  1834,  the  commissioners  of  common  schools  of  the 
town  of  Nichols  formed  a  new  school  district  by  the  designation 
of  district  No,  8.  The  trustees  of  the  districts  from  which  it  was 
taken  having  consented  to  the  alterations  in  their  respective  dis- 
tricts, it  was  immediately  organized  and  a  school-house  built. 
The  district  was  reported  to  the  Superintendent  of  Common 
Schools  as  a  regularly  organized  district  in  1835  ;  but  on  appor- 
tioning the  public  moneys  in  April,  1836.  among  the  school  dis- 
tricts in  the  town,  No.  8  was  refused  a  share  by  the  commission- 
ers on  the  ground  that  it  had  not  been  regularly  organized,  and 
therefore  had  not  a  legal  existence.  The  opinion  of  the  Superin- 
tendent was  desired  as  to  the  propriety  of  their  course  in  thus 
excluding  the  district  from  the  apportionment. 

By  John  A.  Dix,  October  15,  1836.  I  have  received  your 
statement  in  relation  to  school  district  No.  8  in  the  town  of  Ni- 
chols. 

This  district  was  formed,  as  is  admitted,  in  April,  1834;  but 
it  h  alleged  that  the  commissioners  did  not  in  all  respects  pursue 
the  course  required  by  law.  The  proceedings  of  the  commission- 
ers, as  entered  of  record  in  the  office  of  the  town  clerk,  appear 
to  be  regular,  and  it  seems  that  the  consent  of  the  trustees  of 
the  several  districts  out  of  which  No.  8  was  formed,  was  duly 
obtained  and  recorded.     In  the  month  of  July  ensuing,  a  com- 


¥^- 


^ 
'> 


296  CASES    DECIDED    BY   THE 

munication  was  addressed  to  the  Superintendent  of  Common 
Schools,  complaining  of  the  alteration  in  one  of  the  districts  by 
the  formation  of  No.  8.     To  this  application  an  answer  was  im- 
mediately returned,  stating  that  it  could  not  be  received  as  an 
appeal,  because  the  course  prescribed  by  the  Superintendent  in 
such  cases  had  not  been  pursued,  and  that  the  matter  of  com- 
plaint would  be  promptly  investigated  when  it  should  be  present- 
ed in  proper  form.     The  application  has  never  been  renewed ; 
the  new  district  has  been  oiganized  two  years,  a  school-house 
has  been  built,  and  during  the  last  year  a  school  has  been  kept 
in  it  nearly  ten  months.     Under  these  circumstances,  the  new 
district  has  acquired  equitable  rights  which  ought  not  to  be  dis- 
regarded in  an  examination  of  this  subject.     Although  in  form- 
ing the  district  all  the  fomialities  prescribed  by  law  may  not 
have  been  complied  with,  no  irregularity  is  shown  by  the  record, 
and  its  accuracy  sliould  have  been  impeached  at  the  time  it  was 
made,  if  it  was  intended  to  disturb  the  proceedings.     You  state 
that  some  legal  proceedings  which  were  instituted  in  this  case 
were  settled  by  a  decision  adverse  to  the  trustees  of  the  district ; 
but  it  does  not  appear  that  the  principles  of  the  decision  touched 
the  question  of  the  organization  of  the  district.     The  commis- 
sioners of  common  schools  have  no  authority  to  pass  judgmeet 
upon  the  legality  of  its  organization,  as  they  have  done  in  direct 
opposition  to  the  evidence  furnished  by  their  own  record,  and  their 
reports  to  the  Superintendent  of  Common  Schools.     They  might 
have  annulled  the  district;  but  so  long  as  their  own  records  show 
it  to  have  been  regulariy  formed,  they  should  not  be  allowed  to 
dispute  the  feet.     It  is  only  by  a  direct  adjudication  by  a  court 
of  law,  upon  the  legality  of  their  proceedings  in  forming  the  dis- 
trict, a  decision  of  the  Superintendent,  or  an  order  properly  made 
by  themselves  rescinding  their  former  proceedings  and  annulling 
the  district,  tlifat  its  organization  can  be  disturbed.    The  com- 
missioners may,  when  distributing  the  pubhc  moneys,  exclude  a 
district  on  the  giound  that  it  has  not  a  legal  existence ;  but  they 
cannot  do  so  when  their  own  recoi^ds  and  repoits  show  the  con- 
trary.    In  such  a  case,  the  remedy  must  be  provided  in  one  of 
the  modes  before  suggested. 

-^  -■ 

The  Commissioners  of  Common  Schools  of  the  town 
of  Spencer,  ex  parte. 

If  fte  annoal  report  of  a  school  district  is  received  by  the  eetnmissioners  before 
the  public  moneys  are  distribnted,  it  is  in  time,  and  the  district  should  he 
included  in  the  apportionment. 

The  commissioners  of  conmion  schools  of  the  town  of  Spen- 
cer met  on  the  first  Tuesday  of  April,  1836,  to  make  an  appor- 


>  '- 


SUPERINTENDENT    OP   COMMON    SCHOOLS.  297 

tionment  of  the  public  moneys  to  the  school  districts  in  the  town ; 
but  the  annual  report  of  school  district  No.  3,  which  had  been 
handed  to  the  town  clerk,  having  been  mislaid,  the  final  appor- 
tionment was  postponed  until  the  second  Tuesday  of  April. 
Between  the  first  and  second  Tuesday  of  April,  the  annual  re- 
f.  port  of  school  district  No.  2,  which  had  not  before  been  delivered 

P^'n  to  the  town  clerk,  was  handed  in  to  the  commissioners  ;  and  the 
question  presented  by  them  was,  whether  district  No.  3,  the  an- 
nual report  of  which  had  not  been  delivered  before  the  first  Tues- 
day of  April,  should  be  included  in  the  apportionment? 

By  John  A.  Drx,  Mai/  7,  1836.  If  a  report  from  a  school 
district  is  handed  in  at  any  time  before  the  commissioners  have 
apportioned  the  public  money,  it  is  in  time,  and  should  be  included 
in  the  apportionment.  The  law  requires  the  reports  to  be  made 
on  or  before  the  first  of  March,  and  yet  they  are  to  be  received  at 
any  time  before  the  apportionment.  The  apportionment  is  requir- 
ed to  be  made  on  the  first  Tuesday  of  April,  whether  all  the  reports 
are  received  or  not;  but  if  this  duty  is  neglected,  it  must,  from 
the  necessity  of  the  case,  be  discharged  on  a  subsequent  day.  1 
consider  the  apportionment  in  your  town  as  having  been  made 
on  the  second  Tuesday  of  April ;  and  for  the  same  reason  that 
the  report  of  No.  3  was  acted  on  and  a  re-apportionment  made 
after  the  proper  time,  the  report  of  No.  2  should  have  been  re- 
ceived, and  the  proper  allowance  made  to  that  district.  If  the 
apportionment  which  was  to  have  been  made  on  the  first  Tues- 
day of  April,  had  not  been  delayed  by  reason  of  a  mistake  on 
the  part  of  the  town  clerk,  No,  2  could  not  have  come  in  and 
^.•''  claimed  an  allowance ;  bvit  the  distribution  having  been  postpon- 
j  ^        ed,  its  equitable  rights  ought  to  have  been  saved. 

The  Trustees  of  school  district  No.  1  in  the  town  of 
Lawrence,  against  the  Commissioners  of  Common 
Schools  of  said  town. 

Errors  committed  by  the  commissioners  of  common  schools  in  apportioning  th« 
school  moneys,  cannot  be  corrected  by  their  successors  in  office,  without  an 
order  from  the  Superintendent. 

The  facts  of  this  case  are  set  forth  in  the  Superintendent's  order. 

By  John  A.  Dix,  Map  12,  1836.  This  is  a  case  submitted 
by  the  commissioners  of  common  schools  of  the  town  of  Law- 
rence, and  the  trustees  of  school  distiict  No.  i  of  said  town,  with 
respect  to  an  error  in  the  report  of  that  district  for  the  year  1834. 
The  principal  facts  are  as  follows :  The  trustees  of  said  district 
in  their  annual  report  for  that  year  omitted  two  of  the  inhabi- 
tants in  stating  the  "  names  of  parents,"  and  their  six  children 
were  consequently  not  included  in  the  column  of  children  be- 


•^ 


'^ 


-*-■ 


298  CASES    DECIDED    BY   THE  ^    ^^ 

tween  5  and  16  years  of  age.  The  mistake  occurred  in  copy-' 
ing  the  original  draught  of  the  report,  as  the  footing  of  the  co- 
lumn referred  to  contained  six  more  than  the  addition  of  the 
figures  in  the  column  amounted  to.  Soon  after  the  apportion- 
ment of  the  scliool  moneys  in  April  following,  the  error  was  dis- 
covered, and  the  trustees  have  regularly  applied  to  the  commis- 
sioners of  common  schools  during  each  subsequent  year  to  the 
present  time  to  allow  them  the  amount,  to  which  they  were 
equitably  entitled,  and  which  they  would  have  received  but  for 
the  mistake  referred  to.  The  commissioners  have  declined  mak- 
ing the  allowance,  from  the  belief  that  they  had  no  authority  to 
do  so.  The  whole  matter  is  now  submitted  to  the  Superinten- 
dent for  his  direction. 

The  commissioners  of  common  schools  decided  correctly  in 
declining  to  act  for  want  of  authority.  They  are  authorized  to 
correct  errors  in  the  reports,  on  which  the  apportionment  is  to  be 
made  by  them  ;  but  they  have  no  authority  to  correct  errors  in 
the  reports  of  preceding  years,  and  thus  modify  the  apportion- 
ments made  by  their  predecessors  in  office.  All  such  cases  must 
be  brought  before  the  Superintendent  for  an  equitable  adjudica- 
tion.  After  the  lapse  of  time  which  has  occurred  in  this  case,  he 
would  not  interfere,  if  the  trustees  of  No.  1  had  not  regularly 
presented  their  claim  to  the  commissioners  of  common  schools 
every  year  since  the  error  occurred,  with  the  supposition  that  the 
latter  were  authorized  to  correct  it.  As  there  has  been  no  want  of 
diligence  on  their  part,  and  as  the  equity  of  the  case  is  undenia- 
ble, it  is  Ordered,  that  the  commissioners  of  common  schools  of 
the  town  of  Lawrence  pay  to  the  trustees  of  school  district  No.  1 
in  said  town,  out  of  the  next  moneys  which  shall  come  into  their 
hands  for  distribution,  such  sum  as  that  district  would  have  re- 
ceived in  the  year  1834,  if  the  six  children  accidentally  omitted 
had  been  included  in  the  annual  report  of  the  district  for  that 
year. 

The  Trustees  of  school  district  No.  9  in  the  town  of 
Barre,  against  the  Commissioners  of  Common 
Schools  of  said  townw^,^,,  ,^  A% 

If  public  money  is  paid  to  a  teacher  not  qualified,  and  the  trustees  or  inhabitants 
replace,  out  of  their  private  funds,  the  amount  so  paid,  the  district  will  be  al- 
lowed to  participate  in  the  apportionment  of  the  public  moneys. 

The  facts  of  this  case  are  stated  in  the  Superintendent's  order. 

By  John  A.  Dix,  May  14,  1836.  The  Superintendent  of 
Common  Schools  has  examined  the  statement  of  the  trustees  of 
school  district  No.  9  in  the  town  of  Barre,  in  relation  to  the  pay- 
ment of  a  portion  of  the  school  moneys  remved  by  that  district 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  299 

in  1835,  to  a  teacher  not  qualified  according  to  law.  In  the 
truth  of  the  statement,  so  far  as  they  know  them,  the  commis- 
sioners of  common  schools  of  the  town  concur. 

By  this  statement  it  appears  that  the  sum  of  $12 .  50,  received 
from  the  commissioners  of  common  schools  in  April,  1835,  and 
being  a  part  of  the  school  moneys  apportioned  to  the  district 
aforesaid,  was  paid  to  a  teacher,  who  did  not,  during  any  part  of 
her  term  of  instruction,  hold  a  certificate  of  qualification  from  the 
inspectors  of  the  town  dated  within  one  year.  She  had,  however, 
taught  8  seasons.  During  the  year  1834,  she  taught  the  school 
in  an  adjoining  district,  and  she  had  at  different  times  received 
certificates  of  quahfication.  Under  these  circumstances,  the  trus- 
tees, who  employed  her,  neglected  to  have  her  examined  by  the 
inspectors ;  and  their  successors  in  office,  not  being  aware  that 
this  duty  had  been  neglected,  paid  her  the  sum  of  $12.50  out 
of  the  public  moneys  on  account  of  her  wages,  supposing  her  to 
]>e  qualified.  Soon  afterwards  it  was  discovered  that  she  had 
not  a  certificate  dated  within  a  year.  In  their  annual  report  for 
the  year  1835,  the  trustees  stated,  that  of  the  sum  of  $37.50, 
received  from  the  commissioners  of  common  schools,  $25  had 
been  paid  to  a  teacher  duly  qualified,  and  $12.50  to  a  teacher 
not  qualified ;  and  the  commissioners  of  course  refused  to  appor-  „ 
tion  to  the  district  a  share  of  the  public  money  for  the  year  1836. 

The  payment  of  any  portion  of  the  public  money  to  a  teacher 
who  is  not  qualified  as  the  law  directs,  is  a  violation  of  the  sta- 
tute. It  is,  indeed,  not  a  payment  in  law ;  and  the  trustees,  by 
whom  it  is  made,  may  be  prosecuted  for  the  amount  as  for  a 
balance  remaining  in  their  hands.  But  would  the  recovery  of 
the  amount  so  paid  save  the  equitable  rights  of  the  district? 
Clearly  not.  If  it  was  not  a  payment  in  law,  an  equal  sum 
ought  of  right  to  be  raised  by  a  rate  bill  against  those  who  sent 
their  children  to  school  during  the  term  for  which  it  was  paid  : 
and  this  would  not,  without  the  equitable  interposition  of  the  Su- 
perintendent, prevent  a  forfeiture  of  the  right  of  the  district  to  '-^ 
participate  in  the  distribution  of  the  public  money  for  the  present  ^ 
year. 

The  equities  of  this  case  are  clear.  The  teacher,  though  not 
legally  qualified,  was  so  in  point  of  fact.  The  trustees  who  paid  i. 
the  money  were  not  aware  of  the  delinquency  of  their  predeces- 
sors in  office,  until  a  short  time  before  they  made  their  annual 
report;  and  they  have,  by  stating  the  whole  truth  in  that  report, 
given  the  strongest  evidence  of  having  acted  ia  good  faith. 

Under  all  the  circumstances,  the  Superintendent  deems  it  equi- 
table to  allow  the  district  its  share  of  the  public  money,  if  the 
sum  of  $12.50  shall  be  raised  and  replaced  out  of  their  private 
fimds  by  the  trustees  or  inhabitants.     In  this  case,  that  amount 


300  ..  CASES    DECIDED    BY    1*HE  0^'- 

must  be  held  by  the  trustees  as  pubUc  money,  and  expended  dur- 
ing the  present  year  in  payment  of  the  wages  of  qualified  tea- 
chers precisely  as  though  it  had  been  received  from  the  commis- 
sioners of  common  schools ;  and  it  must  be  accounted  for  in 
the  next  annual  report  of  the  district. 

It  is  accordingly  ordered,  that  the  commissioners  of  common 
schools  of  the  town  of  Barre,  on  receiving  satisfactory  evidence 
that  the  foregoing  requirements  have  been  complied  with,  ap- 

Eortion  to  said  district  No.  9,  out  of  any  school  moneys  in  their 
ands,  or  to  be  in  their  hands,  such  sum  as  that  district  would 
have  been  entitled  to  receive  for  the  present  year,  if  the  amount 
apportioned  to  that  district  in  1835  had  been  applied  to  the  pay- 
ment of  the  wages  of  a  qualified  teacher. 

The  Commissioners  of  Common  Schools  of  the  town 
of  Harrisburgb,  ex  parte. 

Permanent  town  funds  must  be  applied  exclusively  for  the  benefit  of  the  com- 
mon schools  in  the  town. 

In  this  case  the  opinion  of  the  Superintendent  was  requested 
by  the  commissioners  of  common  schools  of  the  town  of  Harris- 
burgh,  as  to  the  proper  application  in  joint  school  districts  of  mo- 
neys derived  from  permanent  town  funds.  The  town  of  Harris- 
burgh  had  a  local  fund,  which  was  once  a  poor  fund,  but  which, 
when  the  town  poor  became  a  county  charge,  was  appropriated 
to  the  use  of  common  schools  in  the  town.  The  adjoining  towns 
had  no  such  funds;  and  the  question  proposed  was,  whether  the 
inhabitants  of  those  towns  belonging  to  joint  districts  lying  partly 
in  the  town  of  Harrisburgb  could  be  benefited  by  the  town  fund 
of  the  latter. 

By  John  A.  Dix,  May  31,  1836.  It  has  been  settled,  in 
several  cases,  by  the  Superintendent  of  Common  Schools,  that 
the  proceeds  of  school  lands  must  be  applied  exclusively  for  the 
benefit  of  the  inhabitants  of  the  town  to  which  the  lands  belong. 
Thus,  if  a  joint  school  district  receives  from  one  of  the  towns  of 
which  it  constitutes  a  part,  a  portion  of  the  proceeds  of  the  school 
fund  belonging  to  the  town,  the  inhabitants  of  the  other  town  or 
towns  cannot  be  benefited  by  the  amount  so  received.  For  the 
purpose  of  applying  it  exclusively  to  the  use  of  the  inhabitants  of 
that  part  of  the  district  lying  in  the  town  to  which  the  fund  be- 
longs, two  rate  bills  must  be  made  out  when  the  public  money  is 
insufficient  to  pay  the  wages  of  the  teacher.  One  rate  bill  must 
be  against  the  inhabitants  of  the  district  residing  in  the  town  to 
which  the  fund  belongs,  and  the  other  against  the  inhabitants  of 
the  district  residing  in  the  other  town  or  towns;  and  the  former 
must  be  credited  with  the  amount  derived  from  that  fund. 


▼ 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  301 

The  rule  with  respect  to  all  permanent  town  funds  should  be 
the  same.  Thus  the  poor  fund  which  has,  by  a  vote  of  the  in- 
habitants of  the  town  to  which  it  belongs,  been  appropriated  to 
the  use  of  the  common  schools,  in  consequence  of  abolishing  the 
distinction  between  town  and  county  poor,  should  be  faithfully 
applied  to  the  use  of  the  schools  in  the  town.  The  act  of  27th 
April,  1829,  provides,  (sec.  8,)  that  the  interest  of  the  common 
school  fund  established  in  this  manner  shall  be  "  applied  to  the 
support  of  common  schools  of  such  town,"  that  is,  of  the  town  to 
which  the  fund  belongs. 

A  different  rule  prevails  with  regard  to  the  school  moneys  de- 
rived from  the  common  school  fund  of  the  state,  from  taxation, 
and  from  accidental  sources  of  contribution.  In  all  such  cases 
the  general  rule  of  apportionment  and  expenditure  prevails. 
Thus  if  a  joint  district,  lying  partly  in  two  towns,  derives  from 
those  sources  different  sums  of  money  in  proportion  to  the  number 
of  children  in  each,  the  two  sums  must  be  applied  equally  to  the 
benefit  of  all  in  the  district,  although  one  of  the  towns  may  have 
voluntarily  raised  twice  the  amount  it  derives  from  the  school 
fund  of  the  state,  and  the  other  only  an  equal  amount. 

I  do  not  see  how  these  rules  affect  the  apportionment  to  be 
made  by  the  commissioners  of  common  schools.  They  distri- 
bute the  school  moneys,  in  all  cases,  according  to  the  number  of 
children  in  each  district,  whether  joint  or  single,  residing  in  the 
town.  But  it  is  a  matter  relating  solely  to  the  application  or 
expenditure  of  the  money  by  the  trustees  of  school  districts,  who 
must  see  that  it  goes  to  the  benefit  of  those  who  are  entitled  to  it. 
I  suppose  however,  my  opinion  is  desired  by  way  of  advice  or 
direction  to  the  trustees  of  school  districts. 

The  inhabitants  of  joint  school  district  No.  2  in  the 
towns  of  Otsego  and  Hartvrick,  against  the  trustees 
of  said  district. 

If  trustees  engage  a  teacher  for  a  specified  term,  and  the  inhabitants  of  a  school 
district,  without  good  cause,  withdraw  their  children  from  the  district  school, 
and  send  them  to  a  private  teacher,  the  Superintendent  will  allow  the  greater 
part  of  the  public  money  to  be  applied  to  the  term  for  which  the  teacher  was 
engaged  by  the  trustees. 

The  inhabitants  of  school  districts  should  sustain  the  trustees  in  employing  com- 
petent teachers,  and  in  their  efforts  to  advance  the  standard  of  education. 

The  facts  of  this  case  are  stated  in  the  Superintendent's  order. 

By  John  A.  Dix,  June  6,  1836.  In  the  matter  of  the  appli- 
cation of  certain  inhabitants  of  school  district  No.  2,  lying  pardy 
in  the  town  of  Otsego  and  partly  in  the  towrf  of  Hartwick,  for  a 
division  of  the  school  moneys  between  the  summer  and  winter 
terms,  it  being  tmderstood  to  be  the  intention  of  the  trustees  to 


^'^i- 


•^ 


302  CASES    DECIDED    BY    THE  •  ^- 

appropriate  the  whole  amount  to  the  summer  school,  it  appears, 
that  at  the  late  annual  meeting  in  the  district  no  vote  was 
taken  with  regard  to  the  application  of  the  public  money ;  and 
immediately  afterwards  the  trustees  hired  a  teacher  for  twenty 
dollars  per  month,  the  compensation  usually  paid  to  male  teach- 
ers for  winter  schools.  Some  of  the  inhabitants  of  the  district 
being  dissatisfied  with  the  proceedings  of  the  trustees,  on  account 
of  the  high  wages  to  be  paid  to  the  teacher,  set  up  a  private 
school,  and  engaged  a  female  to  teach  it,  thus  withdrawing  from 
the  district  school  a  large  number  of  the  children,  who  wouW 
otherwise  have  contributed  to  its  support. 

This  proceeding  on  the  part  of  the  persons  who  have  sepa- 
rated themselves  from  the  rest  of  the  district,  and  are  contri- 
buting to  break  down  the  common  school,  is  highly  censura- 
ble. The  sole  objection  to  the  proceedings  of  the  trustees  is  that 
they  have  agreed  to  pay  higher  wages  than  is  necessary  for  a 
common  school.  It  is  not  alleged  that  they  have  not  engaged  a 
competent  teacher;  on  the  contrary,  it  is  stated  that  one  of  the  ob- 
jects of  employing  a  teacher  at  high  wages  is  to  enable  some  of 
the  scholars  to  receive  instruction  in  higher  branches  than  are 
usually  taught  in  the  district.  So  long  as  this  object  does  not 
conflict  with  the  interest  of  those  who  are  pursuing  less  advanced 
studies,  it  deserves  to  be  encouraged;  and  the  Superintendent  it- 
unable  to  perceive  that  the  course  of  the  trustees  has  been  oppres- 
sive or  indiscreet.  The  great  evil  of  the  common  school  system  is 
the  want  of  competent  teachers.  This  deficiency  could  be  readily 
supplied,  if  the  inhabitants  of  school  districts  were  willing  to  pay 
persons  well  qualified  to  teach,  a  sufficient  compensation  to  secure 
their  services.  The  trustees  of  this  district  have  shown  a  desire  to 
elevate  and  maintain  the  character  of  their  school:  and  so  far 
as  is  proper  the  Superintendent  feels  disposed  to  sustain  them  in 
the  effort.  The  district  receives  between  fifty  and  sixty  dollars 
of  public  money;  enough  to  pay  the  wages  of  the  teacher  for  near- 
ly one-third  of  the  entire  year.  Surely  so  liberal  a  contribution 
ought  to  secure  a  corresponding  liberality  on  the  part  of  those  im- 
mediately benefited  by  it.  It  may  seem  unequal  to  pay  at  the 
same  rate  for  children  who  study  the  common  branches  and  for 
those  who  pursue  studies  of  a  higher  grade.  But  from  the  na- 
ture of  the  common  school  system  no  distinction  can  be  made. 
Ultimately  all  are  equally  benefited ;  for  as  small  children  ad- 
vance, their  contributions  do  not  increase  in  proportion  to  the  stu- 
dies which  they  pursue,  and  thus  their  tuition  costs  them  less  than 
they  would  be  compelled  to  pay  if  such  a  distinction  were  made. 
Every  inhabitant  of  a  school  district  who  has  children  is  inte- 
rested in  maintaining  a  respectable  school.  If  the  policy  of  a 
school  district  is  to  employ  a  teacher  who  is  merely  competent  to 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  303 

give  instruction  in  the  first  rudiments,  those  whose  children  are 
young  may  be  gainers,  in  a  pecuniary  point  of  view,  by  reason 
of  the  low  wages  paid ;  but  they  should  not  lose  sight  of  the  fact, 
that  if  the  same  policy  is  pursued,  their  children,  as  they  advance 
to  manhood,  will  not  enjoy  those  facilities  for  the  acquisition  of 
knowledge  which  are  necessary  to  make  them  respectable  mem- 
bers of  society,  and  to  enable  them  to  enter  into  successful  com- 
petition with  others  for  its  honors  and  emoluments. 

The  Superintendent  has  always  been  accustomed  to  direct, 
when  applications  have  been  made  to  him  for  the  purpose,  that 
the  public  moneys  received  by  a  school  district  should  be  equally 
divided  between  the  summer  and  winter  terms.  This  case  is 
distinguished  from  any  other  which  has  come  before  him.  Al- 
though the  trustees  have  acted  in  good  faith,  and  have  employ- 
ed a  teacher,  against  whom  no  charge  is  brought,  a  portion  of 
the  inhabitants  have  set  up  a  school  in  opposition  to  the  one  es- 
tablished by  the  trustees,  because  they  are  unwilling  to  pay  their 
jtist  proportion  of  his  wages.  If  by  allowing  the  whole  of  the 
public  money  to  be  applied  to  the  summer  term,  the  Superin- 
tendent were  sure  that  the  effects  would  fall  on  those  only  who 
have  taken  this  course,  he  would  not  interfere.  But  as  innocent 
persons  might  suffer,  and  as  he  is  unwilling  to  abandon  altoge- 
ther the  principle  of  dividing  the  school  moneys  between  sum- 
mer and  winter  terms  : 

It  is  hereby  ordered,  that  one-third  of  the  public  money  receiv- 
ed by  the  trustees  of  school  district  No.  2  aforesaid,  for  the  pre- 
sent year,  be  reserved  for  the  fall  or  winter  term ;  and  that  the 
remaining  two-thirds  may,  in  their  discretion,  be  applied  in  whole 
or  in  part  to  the  summer  term. 

(anonymows.) 

Children  in  county  poor-houses  cannot  be  sent  to  a  district  school,  excepting 
by  voluntary  agreement  with  the  trustees. 

By  John  A.  Dix,  Jime  29,  1836.  Superintendents  of  the 
poor  cannot  claim,  as  matter  of  right,  the  admission  of  pauper 
children  into  the  common  school  of  the  district  in  which  the 
county  poor-house  is  estabhshed.  If  they  are  admitted,  it  must 
be  by  a  voluntary  agreement  with  the  trustees  of  the  district. 

(anonymous.) 

When  trustees  of  districts  find  it  necessary  in  assessing  a  tax  to  proceed  in  the 
same  manner  as  assessors  of  towns,  they  are  allowed  twenty  days  in  addition 
to  the  month  within  which  the  tax  list  is  required  by  law  to  be  made  out. 

By  John  A.  Dix,  June  30,  1836.  When,  in  consequence 
of  a  claim  by  an  individual  to  a  reduction  of  his  valuation,  it  be- 


304  ^ASES    DECIDED   BY   THE  "^    ** 

comes  necessary  to  proceed  in  the  same  manner  as  the  asseesors 
of  towns  are  required  by  law  to  do,  the  trustees  of  a  school  dis- 
trict are  allowed,  according  to  the  construction  which  I  have 
given  to  the  statute,  twenty  days  to  complete  the  assessment  of 
a  tax  in  addition  to  the  month  within  which  the  tax  must  be 
assessed  and  the  tax  list  made  out.  Suppose  trustees  assess  a 
tax  twenty-five  days  after  it  is  voted,  and  on  that  day  a  person 
claims  a  reduction.  It  is  their  duty  to  give  a  notice  of  twenty 
days,  and  then  to  meet  and  review  their  assessment.  But  if  their 
right  to  complete  the  assessment  expires  at  the  end  of  the  month 
after  the  tax  is  voted,  it  will  be  necessary  to  call  another  meeting 
with  a  view  to  vote  the  tax  anew.  By  the  construction  above 
given,  the  two  provisions  are  reconciled,  and  the  embarrassment 
referred  to  can  never  occur.  The  law  gives  a  twofold  direction 
to  the  trustees,  and  both  must  be  obeyed.  The  tax  list  must  be 
made  out  within  one  month,  but  the  meeting  for  reviewing  the 
assessment  is  an  independent  act,  and  the  time  allowed  for  per- 
forming it  must  be  deemed  to  be  exclusive  of  the  time  prescribed 
for  eissessing  the  tax.  If  a  different  construction  were  adopted, 
it  would  be  necessary  that  every  tax  list  should  be  made  out 
within  ten  days  after  the  tax  is  voted,  in  order  to  enable  the  trus- 
tees to  be  prepared  for  a  claim  to  a  reduction.  An  interpreta- 
tion which  shall  avoid  this  inconsistency  and  save  both  provi- 
sions of  the  law,  is  right  in  itself,  and  does  not,  as  I  perceive, 
violate  any  settled  rule  of  construction. 

(anonymous.) 

If  the  assessment  of  a  tax  is  delayed  by  an  appeal,  the  time  is  not  to  be  comput- 
ed as  part  of  the  month  within  which  the  tax  list  must  be  made  out. 

By  John  A.  Dix,  July  2,  1836.  Where  the  assessment  of 
a  tax  is  delayed  by  an  appeal,  the  time  intervening  between  the 
presentation  of  said  appeal  and  the  decision  thereon,  is  not  to  be 
computed  as  a  part  of  the  month  within  which  the  tax  list  is  re- 
quired to  be  made  out.  The  regulations  of  the  Superintendent 
relating  to  appeals,  provide,  that  "  after  copies  of  the  appeal  in 
any  case  have  been  served,  all  proceedings,  from  the  operation 
of  which  relief  is  sought,  will  be  suspended  until  the  case  is  de- 
cided." While  an  appeal  is  pending,  the  proper  officers  have  no 
authority  to  act,  and  when  that  disability  is  removed,  their  rights 
and  the  rights  of  those  whose  agents  they  are,  are  not  to  be  pre- 
judiced by  a  delay  for  which  they  are  not  answerable. 


■  j;f7»>'  <■    '■■!i-   -y  -■;'!-*"•  Jfi  t 


ifv 


•i-A-v 


SUPERINTENDENT    OP   COMMON   SCHOOLS.  305 

The  Commissioners  of  Common  Schools  of  the  town 
of  Chatham,  ex  parte. 

The  aumb«r  of  a  joint  school  district  should  not  be  changed  without  the  concur- 
rence of  tile  commissioners  of  all  the  towns  within  which  the  district  partly 
lies. 

This  was  an  application  for  the  opinion  of  the  Superintendent 
as  to  the  authority  of  the  commissioners  of  common  schools  of 
the  town  of  Chatham,  to  alter  the  number  of  a  school  district  ly- 
ing partly  in  that  town  and  partly  in  an  adjoining  town. 

By  John  A.  Dix,  September  1,  1836.  The  commissioners 
of  common  schools  of  one  town  should  not  alter  the  number  of 
a  school  district  lying  partly  in  another  town  without  the  concur- 
rence of  the  commissioners  of  the  latter.  By  referring  to  sub. 
No.  3  of  sec.  19  of  the  common  school  act,  (1  R.  S.  page  470,) 
you  will  perceive  that  the  commissioners  of  common  schools  in 
each  town  are  required  "  to  describe  and  number  the  school  dis- 
tricts, and  to  deliver  the  description  and  numbers  thereof  in  writ- 
ing to  the  town  clerk,"  «fcc.  The  specification  of  tlie  powers  of 
the  commissioners  under  this  section,  has  reference  to  single  dis- 
tricts, or  districts  lying  wholly  within  the  limits  of  one  town. 
But  with  respect  to  joint  districts,  or  districts  lying  partly  in 
several  towns,  none  of  those  powers  can  properly  be  exercised, 
excepting  with  the  concurrence  of  the  commissioners  of  all  the 
towns  in  which  such  districts  partly  lie»  The  numbering  of 
a  district  may  be  considered  as  an  act  pertaining  to  the  regula- 
tion of  the  district ;  and  by  reference  to  section  20,  page  471,  1 
R.  S.  you  will  perceive  that  in  respect  to  joint  districts,  or  districts 
formed  out  of  two  or  more  adjoining  towns,  the  concurrence  of 
the  major  part  of  the  commissioners  of  each  of  such  adjoining 
towns  is  necessary,  in  order  to  "regulate"  or  alter  them.  When, 
therefore,  the  number  of  a  joint  district  is  altered,  the  commis- 
sioners of  all  the  towns  of  which  such  district  constitutes  a  part, 
should  meet  together  and  concur  in  the  alteration,  and  the  new 
number  must  be  delivered  in  writuig  to  the  town  clerk  of  each 
town- 
Harvey  Loomis,  a  taxable  inhabitant  of  joint  school 

district  No.  1  in  the  towns  of  Milton  and  Ballston, 

against  the  Trustees  of  said  district. 

If  a  person  remores  from  one  school  district  into  another  in  the  same  villagf', 
and  takes  lodgings  for  his  family  until  he  can  find  a  permanent  place  of  resi- 
dence, to  suit  him,  he  is  a  taxabl*  inhabitant  of  the  district  into  which  he  haa 
*o  removed. 

The  facts  of  this  case  are  stated  in  the  Superintendent's,  or- 
der. "■'"'•'  tr>t}i  J 

20  *       ^  . 

^-  'c 


306  »'..:OrtW  't;AlBES   DECIDED    BY   THE 

By  John  A.  Dix,  Se])tember  10,  1836.  On  the  16th  day 
of  January,  1836,  the  commissioners  of  common  schools  of  the 
towns  of  Milton  and  Ballston  divided  joint  school  district  No.  1, 
l3'ing  partly  in  both  those  towns,  and  comprising  within  its  boun- 
daries the  village  of  Ballston  Spa,  and  formed  a  new  district  by 
the  designation  of  district  No.  12.  By  this  division,  Harvey 
Loomis,  who  had  for  several  years  been  a  resident  of  said  dis- 
trict, and  of  that  part  of  it  which  was  set  off  to  No.  12,  became 
an  inhabitant  of  the  latter  district.  About  the  first  of  May,  the 
said  Loomis  removed  with  his  family  into  that  part  of  the  former 
district  which  retained  its  original  number,  and  took  lodgings  at 
the  house  of  his  brother-in-Iaw^  Reuben  Westcott,  having  sold 
his  dwelling-house  in  district  No.  12,  and  surrendered  the  posses- 
sion thereof  to  the  purchaser  on  the  said  first  day  of  May.  On 
the  7th  of  May  a  site  was  fixed,  and  a  tax  voted  for  a  school- 
house  in  district  No.  1.  On  the  26th  of  May,  Harvey  Loomk 
gave  notice  that  he  should  claim  a  reduction  of  the  amount  of 
his  assessment.  The  trustees  made  out  their  tax  list  on  the  6th  of 
June,  having  given  twenty  days'  notice  of  the  time  and  place  at 
which  they  would  meet  to  review  their  assessment.  At  the  time 
and  place  appointed,  Harvey  Loomis  did  not  appear  to  claim  a  re- 
duction of  the  amount  of  his  tax.  He  was  therefore  assessed  on 
$20,000,  the  amount  of  his  personal  property  as  ascertained  by 
the  last  assessment  roll  of  the  town,  and  was  taxed  $80,  his  just 
proportion  of  the  whole  tax.  From  this  proceeding  he  appeals, 
And  claims  a  total  exemption  on  the  ground  that  he  was  not  a 
resident  of  the  district  at  the  time  the  tax  list  was  made  out. 

The  liability  of  Mr.  Loomis  to  be  taxed  in  district  No.  1  de 
pends  altogether  on  the  fact  of  his  being  a  resident  of  the  dis- 
trict at  the  time  the  tax  list  was  made  out.  If  he  was  so,  he 
was  liable  to  be  taxed.  If  not.  he  was  not  taxable,  and  the  trus- 
tees should  not  have  included  him  in  the  tax  list.  The  question 
of  residence  is  one  which  is  to  be  settled  by  the  facts  of  the  case, 
and  with  regard  to  these  there  is  no  dispute.  Mr.  Loomis  went 
into  district  No.  1  with  his  family,  and  engaged  rooms  there  un- 
til he  could  find  a  permanent  place  of  residence.  The  act  of 
removing  from  one  house  to  another  in  the  same  village,  even 
as  preparatory  to  a  future  permanent  removal  from  the  county, 
did  not,  so  far  as  regards  the  village  and  town,  amount  to  a 
change  of  residence.  The  intention  of  establishing  himself  per- 
manently at  some  future  time  at  a  different  place,  if  he  should 
succeed  in  finding  one  to  suit  him,  seems  to  the  Superintendent 
to  be  conclusive  against  the  position  assumed  by  him,  that  he 
had  changed  his  residence.  The  proposed  change  of  residence 
is  future  and  contingent,  and  must  be  consummated  by  an  ac- 
tual removal ;  and  certainly  such  actual  removal  is  altogether 


-SUPERINTENDENT    OP   COMMON    SCHOOLS.  307 

inconsistent  with  the  intention  to  remove  at  a  future  time.  Mr. 
Loomis  is  clearly  taxable  in  the  town.  Did  not  the  assessors  in- 
clude him  in  the  town  assessment  for  the  present  year?  Doubt- 
less they  considered  it  their  duty  to  do  so.  The  fact  that  Mr. 
Loomis  went  to  the  city  of  New- York  with  his  family  shortly 
after  he  took  rooms  at  the  house  of  his  brother-in-law,  Mr.  West- 
cott,  and  afterwards  travelled  into  the  western  part  of  tiie  state, 
does  not,  when  taken  in  connection  with  other  circumstances, 
vary  the  case ;  nor  does  the  fact  of  going  to  Troy  in  quest  of  a 
"•  suitable  place  for  the  intended  permanent  future  abode  of  his 
family,"  amount  to  an  actual  change  of  residence.  At  the  ter- 
mination of  these  several  movements,  he  regularly  returned  to 
the  village  of  Ballston  Spa;  and  if  his  intention  can  l)e  inferred 
from  the  facts,  it  would  seem  to  have  been  to  make  that  village 
liis  temporary  place  of  abode  until  he  could  find  a  {jemianent 
one.  Certainly,  there  was  not  such  an  actual  removal  as  to 
terminate  his  residence  ia  that  village. 

The  same  reasoning  is  applicable  to  the  question  of  his  resi- 
dence in  district  No.  1.  He  ceased  to  be  an  inhabitaot  of  dis- 
trict No.  12  when  he  gave  up  the  possession  of  his  house  and 
took  rooms  in  the  former  district,  and  by  virtue  of  this  removal 
from  a  house  in  one  district  to  a  house  in  another  in  the  same 
village,  he  became  an  inhabitant  of  the  district  into  which  he  so 
removed,  unless  he  lost  his  residence  in  the  village  aitogether. 
This  point  having  been  disposed  of,  he  must  be  considered  an 
inhabitant  of  district  No.  I  at  the  time  the  tax  list  was  made 
out,  and  he  was  therefore  taxable  on  his  personal  property  for 
iX>mmon  school  purposes  He  might  have  appeared  and  claimed 
a  reduction  of  his  tax,  agreeably  to  his  notice  to  the  tnistees ; 
but  having  failed  to  do  so,  the  tax  must  be  collected  as  assessed. 

It  is  hereby  ordered,  that  the  appeal  of  Harvey  Loomis  afore- 
said, bej  and  it  is  dismissed. 

(anonymous.) 

The  collector  of  a  scTiool  district  is  answerable  for  moneys  lost  to  the  district  by 
his  neglect,  though  he  may  net  have  given  a  bond  to  the  trustees. 

if  the  term  of  service  of  the  trustees  and  collector  has  expired,  and  a  warrant 
for  the  collection  of  a  school  bill  has  run  out  in  the  hands  of  the  latter,  the 
successors  ef  such  trustees  must  renew  the  warrant  and  direct  it  to  Itie  suc- 
cessor of  such  collector. 

By  John  A.  Dix,  September  12,  1836.  If  by  the  neglect 
of  a  collector,  moneys  which  might  have  been  collected  by  him 
within  the  time  limited,  are  lost  to  the  district,  he  is  liable  for 
the  amount,  whether  he  has  given  a  bond  or  not  to  the  trustees. 
The  bond  is  an  additional  security  ;  but  if  it  is  not  required  of 
him,  he  is  not  released  from  any  obligation  which  tlie  law  ira- 


-jr 


$■ 

^VM>*i:>   CASES   DECIDED   BT   THE 

poses  on  him.  The  trustees  may  require  a  bond  of  the  collec- 
tor or  not,  as  they  please.  If  they  do,  they  may,  in  case  of  hi:^ 
deHnquency,  look  to  his  sureties :  If  they  do  not,  they  must  look 
to  him  for  an  indemnity  against  losses  sustained  by  the  district. 
If  the  terra  of  service  of  both  trustees  and  colleclor  has  expir- 
ed, and  a  warrant  for  the  collection  of  a  school  bill  has  run  out 
in  the  hands  of  the  latter,  the  successot's  in  office  of  such  trus- 
tees must  renew  the  warrant,  and  deliver  it  to  the  successor  of 
the  collector ;  but  the  collectw  in  whose  hands  the  warrant  nms 
out  is  answerable  if  there  is  any  loss  through  his  neglect. 

The  Trustees  of  school  district  No.  2  in  the  town  of 
Manheim,  ex  parte. 

Grass  Isuid  and  ploughred  land  swe  taxaWe  to  the  non  resident  owner  r  bat  a  wo«d 
lot  used  for  mahuTachiTing  raaple  sugar  is  not  tliixable  t&such  owner. 

In  school  district  No.  2  in  the  town  of  Manheim,  there  were 
three  pieces  of  land  belonging  to  A.  B,  residing  in  another 
district.  One  piece  was  leed  for  mowing,  another  for  tillage, 
and  the  third  was  a  wood  lot  used  for  manufacturing  maple  su- 
gar. Tl*e  owner  had  no  agent  or  servant  in  charge  of  either 
piece.  The  question  proposed  was,  whether  either  or  all  were 
taxable  to  tl>e  owBer  in  district  No.  27 

By  JaHN  A.  Dix,  September  12,  1836.  A.  R  is  liable- 1« 
be  taxed  oil  the  piece  of  land  ''occupied  as  gtas*  laod  and 
plough  land/'  but  not  on  the  wood  lot  used  foE  maraufacturing 
maple  sugar.  The  latter  not  being  cleared  aad  cultivated  is  not 
taxable  to  him,  as  lie  is  a  non-resident,,  and  has  no  agent  in  tke 
district  in  the  occupation  of  it. 

William  H.  Strunk,  a  taxaWe  inhabitant  of  school 
district  No.  18  in  the  town  of  EIHcott^  against  the 
Trustees  of  said  district. 

Commissioners  of  common  schools  have  no  auttiority  to  declare  void  the  pro- 
ceedings of  school  district  meetings. 

If,  througli  the  negiect  of  trustees,  a  tax  to  build  a  school-house  is-  not  collected 
witl>in  a  reasonable  time,  and  before  the  collection  is  made,  a  new^  district  is 
formed  and  an  inhabitant  set  off  to  it,,  the  Superintendent  will  remit  so  much 
of  the  tax  to  build  a  school-house  in  the  district  from  which  such  inhabitant 
was  taken  as  was  assessed  to  him. 

The  facts  of  this  case  are  stated  in  the  Superintendent's  order. 

By  John  A.  Dix,  September  12,  1836.  On  the  16th  day 
of  November,  1835,  the  inhabitants  of  school  district  No.  18  in 
the  town  of  Ellicott,  at  a  special  meeting  called  for  the  purpose, 
voted  that  the  site  of  the  school-house  should  be  changed  and  a 
new  house  ^ected.    The  meeting  was  then  adjourned  to  the  164h 


SUPERINTENDENT    OP   COMMON   SCHOOLS.  309 

of  November,  and  a  notice  given,  by  posting  up  the  same,  set- 
ting forth  that  the  meeting  would  be  held  at  the  time  and  place 
agreed  on,  to  meet  the  commissioners  of  common  schools,  for  the 
purpose  of  estabUshing  a  site  for  tlie  new  school-house,  and  to 
attend  to  other  business.  At  this  meeting  the  commissioners  de- 
clared the  proceedings  of  the  previous  meeting  void,  and  the  inha- 
bitants voted  to  change  the  site  of  the  school-house,  and  to  raise 
a  tax  of  $200  to  build  the  new  house.  The  tax  was  assessed  ac- 
<:ordingly,  and  at  the  time  it  was  so  assessed.  William  H.  Strunlc, 
being  a  taxable  inhabitant  of  said  school  district  No.  18,  was 
raxed  ^40.  The  tax  has,  however,  not  been  collected  of  said 
Strunk.  Subsequently  to  this  proceeding,  a  new  school  district 
was  formed  by  the  commissioners  of  common  schools,  by  the 
designation  of  district  No.  3,  and  said  Strunk  was  included  in  it. 
A  tax  has  been  laid  in  the  latter  for  a  school-house,  and  said 
Strunk  has  paid  his  proportion  of  it,  amounting  to  $39.83.  He 
is  now  called  on  to  pay  the  tax  of  $40  which  was  assessed  to 
him  in  district  No.  18,  in  1835,  and  he  applies  to  the  Superin- 
tendent to  decide  whether  he  shall  pay  it.  The  trusteess  of  No. 
18  have  presented  their  answer  to  the  application,  and  it  has 
l)een  duly  considered.  The  facts  set  forth  by  the  appellant,  not 
having  been  disputed  in  the  answer  of  the  trustees,  are  presumed 
to  be  truly  stated. 

Mr.  Strunk  was  clearly  liable  to  be  assessed  in  district  No.  18. 
He  was  a  taxable  inhabitant  at  the  time  the  tax  list  was  made 
out,  and  there  is  nothing  in  the  proceedings  of  the  meeting,  at 
which  the  tax  was  voted,  to  justify  the  Superintendent  in  set- 
ting them  aside.  The  proceedings  of  the  commissioners  of  com- 
mon schools,  in  declaring  the  meeting  of  the  16th  of  October 
void,  were  wholly  without  authority.  They  had  no  jurisdiction 
in  the  case;  and  as  the  proceedings  of  that  meeting  were  not 
appealed  from  within  the  time  limited  by  regulation,  they  will 
be  presumed  to  have  been  regular.  Nor  have  the  commission- 
ers any  authority  to  fix  a  site  for  the  new  school-house,  though 
they  might  as  individuals,  with  a  view  to  settle  a  controversy,  act 
as  umpires,  at  the  request  of  the  inhabitants,  between  the  contend- 
ing parties.  The  notice  for  the  adjourned  meeting  was  regular, 
and  there  can  be  no  good  foundation  for  the  pretence  that  the 
vote  to  raise  a  tax  took  any  one  by  surprise.  The  vote  to  build  a 
new  school-house  had  been  taken  thirty  days  before,  and  the 
erection  of  the  house  given  to  the  lowest  bidder.  The  meeting 
was  then  adjourned  for  one  month,  and  it  was  but  reasonable  to 
expect  that  at  the  time  appointed  the  necessary  sum  w^ould  be 
voted  for  the  erection  of  the  house.  Indeed,  as  the  adjournment 
was  for  one  month  only,  no  notice  was  necessary.    At  all  events^ 

■%' 

i. 


310  l.fi>nT>CASE»  BECIDED    BY    THE 

a»  there  was  no  legal  defect,  the  proceedings  will  not,  after  the 
lapse  of  ten  months,  be  disturbed. 

Mr.  Strunk  was,  therefore,  habie  to  pay  his  tax  in  district 
No".  18.  But  it  is  now  to  l)e  considered  whether  he  has  not 
equitable  rights,  which  may  fairly  be  set  up  in  bar  of  the  pay- 
ment of  the  tax.  It  is  proper  to  remark,  that  the  tax  in  No.  18 
ought  to  have  been  promptly  collected.  In.  deferring  it  for  so 
long  a  period,  the  trustees  have  been  guilty  of  neglect,  and 
otliers  must  not  be  prejudiced  by  the  delay.  That  Mr.  Strunk 
will  be  so  prejudiced,  witliout  the  interposition  of  the  Superin- 
tendent, will  be  manifest,  when  it  is  considered  how  he  would 
have  stood  if  they  had  performed  their  duty.  It  is  provided  that 
the  commissioner  of  common  schools,  whenever  a  new  district 
is  fonnedy  shall  apportion  to  it  a  just  proportion  of  the  value  of 
the  school-house  "and  other  property"  of  the  districts  from  which 
it  is  taken.  District  No.  18  had  no  school-house ;  but  if  the 
trustees  had  collected,  with  proper  promptitude,  the  tax  voted  to 
build  one,  they  would  have  had  a  sum  of  money,  of  which  Mr. 
Strunk  would  have  been  entitled  to  a  share,  when  he  was  setoff 
to  the  new  district.  Through  the  neglect  of  the  officers  of  the 
district,  that  sum  had  not  been  collected  ~  but  in  the  equitable 
jurisdiction  of  the  Superintendent  over  all  such  matters,  a  reme- 
dy may  readily  be  provided  for  those  cases,  in  which,  ^\^thout 
his  interposition,  injustice  would  be  done  to  tliird  persons.  It 
should  be  observed,  in  justice  to  the  officers  of  the  district,  that  the 
time  for  delivering  to  the  collector  a  warrant  for  the  collection 
of  a  lax  is  not  prescribed.  But  the  statute  provides  that  every 
tax  shall  be  assessed  and  the  tax  list  made  out- within  one  month 
aftei  it  is  voted :  and  the  Superintendent  has  always  required 
that  the  warrant  should  be  immediately  delivered  to  the  collector. 
If  this  had  been  done,  apd  the  tax  collected,  it  would  have  been 
the  duty  of  the  commissioners  in  forming  district  No.  3  and  an- 
nexing Mr.  Strunk  to  it,  to  apportion  to  that  district  so  much  of 
the  sum  collected  to  build  a  school-house,  as  it  would  have  been 
outitled  to  receive  upon  the  basis  of  his  property.  According  to 
(he  rule  of  apportionment  provided  by  law,  the  sum  so  allowed 
ro  district  No.  3  would  have  been  precisely  what  he  would  have 
[mid,  ($40,)  and  this  sum  would  have  been  credited  to  him  in  re- 
duction of  his  tax  in  district  No.  3  for  building  a  school-house. 

The  duty  enjoined  upon  the  Superintendent  in  this  case,  by 
every  consideration  of  fairness  and  equity,  is  either  to  remit  the 
tax  alU^ether,  or  to  provide  for  apportioning  to  No.  3  so  much  of 
the  value  qf  the  school-house  in  No.  18,  or  so  much  of  the 
amount  raised  to  build  one,  as  it  is  justly  entitled  to  receive  on 
account  of  Mr.  Strunk's  taxable  property.  Either  course  would 
have,  so  far  as  respects  the  latter  district,  the  same  result.     The 


>^' 


m  r 
A 


SUPERINTENDENT    OF   COMMON   SCHOOLS.  311 

cimount  of  Mr.  Striink's  tax  wovild  be  raised  upon  the  remain- 
ing inhabitants  of  the  district.  As  the  last  of  the  two  courses 
suggested  would  be  attended  with  some  embarrassment,  and  as 
the  ends  of  justice  will  be  equally  attained  by  either,  he  prefers 
to  remit  the  tax  assessed  on  Mr.  Strunk,  and  leave  it  to  district 
No.  18  to  make  up  the  deficiency. 

It  is  accordingly  ordered,  that  the  tax  assessed  on  William  H. 
Strunk,  for  buildmg  a  school-house  in  district  No.  18  in  the  town 
of  EUicott,  amounting  to  $40,  be  and  it  is  hereby  wholly  remitted ; 
and  the  trustees  are  hereby  authorized  and  required  to  re-assess 
the  amount  of  said  tax  on  the  remaining  inhabitants  of  said 
district.  ■** 

The  Trustees  of  school  district  No.  6  in  the  town  of 
Lowville,  ex  parte. 

When  the  site  of  a  district  school-house  is  changed  parsuant  to  the  act  of  17th 
February,  1S3I,  the  inhabitants  have  power  to  direct  the  sale  of  the  former 
lot  and  site. 

The  site  of  the  school-house  in  district  No.  6  in  the  town  of 
Lowville,  was  changed  by  a  vote  of  two-thirds  of  the  inhabitants, 
with  the  consent  of  the  commissioners  of  common  schools  of  the 
town,  the  district  not  having  been  altered  from  the  time  the 
school-house  bad  been  built.  The  question  proposed  to  the  Su- 
perintendent was,  whether  the  trustees,  under  the  act  of  11th 
May,  1835,  chap.  308,  laws  of  1835,  could  dispose  of  the  for- 
mer lot  and  site,  or  whether  a  vote  of  the  inhabitants  was  neces- 
sary under  the  act  of  17th  Feb.  1831? 

By  John  A.  Dix,  September  26,  1836.  By  the  act  of  17th 
Feb.  1831,  the  inhabitants  of  a  school  district  may,  whenever 
the  site  of  the  school-house  has  been  lawfully  changed  as  there-  -* 
in  provided,  direct  the  sale  of  the  former  site  or  lot  and  the  build- 
ings thereon,  on  such  terms  as  they  shall  deem  most  advantage- 
ous to  the  district.  They  may  of  course  exchange  the  old  site 
for  a  new  one,  if  they  have  an  opportunity  of  doing  so  ;  but  a 
vote  of  the  inhabitants  is  necessary  to  authorize  the  trustees  to 
sell  or  convey  it,  the  site  having  been  changed  pursuant  to  the 
act  referred  to. 

(anonymous.) 

Whenever  the  site  of  a  district  school-house  is  legally  changed,  otherwise  than 
by  the  act  of  17th  February,  1831,  the  trustees  have  power  to  sell  and  con- 
vey the  former  lot  and  site  without  a  vote  of  the  inhabitants  of  the  district. 

By  John  A.  Dix,  September  27,  1836.  The  act  of  17th 
of  February,  1831,  prescribes  the  mode  in  which  a  school- 
house  and  site  shall  be  disposed  of,  when  the  latter  is  changed 


312  CASES    DECIDED   BY   THE        aaf*^  ^.  % 

in  pursuance  of  the  provisions  of  that  act ;  that  is,  where  the 
district  has  not  been  altered  after  a  school- house  has  been  built 
or  purchased.  In  every  such  case  the  inhabitants  must  give 
their  direction  as  to  the  terms  of  the  sale,  and  the  trustees  may 
convey  the  lot  in  pursuance  of  such  direction. 

Section  4,  of  the  act  of  May  11,  1835,  chap.  308,  laws  of 
that  year,  authorizes  the  trustees  of  a  school  district,  whenever 
the  site  of  the  school-house  shall  have  been  legally  changed,  to 
sell  and  convey  the  former  site  and  the  building  or  buildings 
thereon,  on  such  terms  as  they  shall  deem  advantageous  to  the 
district. 

This  act  was  intended  to  reach  cases  which  were  not  provided 
for  by  the  act  of  1831;  as  where  a  district  has  been  altered  af- 
ter a  school-house  has  been  built  or  purchased.  In  such  a  case, 
there  was  no  power  to  dispose  of  the  former  site,  as  the  provisions 
of  the  act  of  1831  were  applicable  only  to  unaltered  districts. 

The  only  question,  which  can  arise  is,  whether  the  act  of 
1831  is  so  far  modified  by  the  act  of  1835,  that  the  latter  has 
become  applicable  to  cases  arising  under  the  former  ?  I  am  of 
opinion  that  the  act  of  1831  is  not  affected  by  the  provisions  of 
the  act  of  1835,  The  3rd  section  of  the  latter,  provides  that 
"  those  parts  of  the  provisions  of  the  Revised  Statutes  which  are 
inconsistent  with  the  provisions  of  this  act  are  hereby  repealed." 
This  section  was  originally  reported  as  a  separate  bill,  but  on  its 
final  passage  it  was  incorporated  with  the  other  sections  of  the 
act  of  1835,  so  that  in  fact  the  repealing  clause  was  intended 
to  apply  only  to  the  subject  matter  of  the  3rd  section.  This  re- 
ference to  the  legislative  history  of  the  act  would  not  be  conclu- 
sive as  to  its  intention,  if  its  language  was  inconsistent  with  it. 
But  it  will  be  observed  that  the  repealing  clause  is  applicable  only 
to  such  parts  of  the  Revised  Statutes  as  are  inconsistent  with  the 
provisions  of  the  act  of  1835.  The  act  of  1831  does  not  con- 
stitute a  part  of  the  Revised  Statutes,  although  by  that  act  one 
section  of  the  statute  entitled  "  Of  common  schools,"  was  re- 
pealed. 

The  terms  of  the  act  of  1835  are  very  comprehensive.  They 
give  trustees  authority  to  sell  and  convey  the  former  lot,  &e. 
"  whenever  the  site  of  the  school-house  in  any  district  in  this 
state  shall  have  been  legally  changed  ;"  and  yet,  as  the  act  of 
1831  is  neither  referred  to  nor  repealed,  I  am  disposed  so  to  con- 
strue the  act  of  1835  as  to  maintain  the  provisions  of  both  in 
full  force.  There  is  no  inconsistency  in  them.  The  former  re- 
fers to  a  single  class  of  cases,  while  the  latter  embraces  all 
others. 


f 


i  superintendent  of  common  schools.  313 

(anonymous.) 

The  public  money  cannot  be  paid  to  teachers  for  services  rendered  during  the 

year  preceding  the  receipt  of  such  moneys. 
The  expense  of  conveying  a  teacher  home  cannot  be  paid  by  tax,  or  included 

in  a  rate  bill. 
If  trustees  refuse  to  prosecute  their  predecessors  for  an  unpaid  balance,  there  is 

no  mode  of  compelling  them  to  do  so. 

By  John  A.  Dix,  September  27,  1836.  Trustees  of  school 
districts  have  no  light  to  pay  the  public  money  received  in  April 
to  teachers  for  services  rendered  before  the  preceding  first  of  Ja- 
nuary. It  must  all  be  paid  for  services  actually  rendeied  during 
the  year  in  which  it  is  received. 

The  expense  of  conveying  a  teacher  home  is  not  a  legitimate 
object  of  taxation,  nor  can  the  amount  paid  for  that  purpose  be 
included  in  a  rate  bill.  If  paid  at  all,  it  must  be  by  voluntary 
iiubscription. 

If  a  former  trustee  has  money  in  his  hands  belonging  to  the 
district,  the  trustees  in  office  should  prosecute  him  for  the  amount 
as  an  unpaid  balance,  sec.  102,  page  486,  1  R.  S.  If  they  re- 
fuse to  do  so,  I  know  no  way  of  compelling  them.  The  only 
remedy  is  to  turn  them  out  of  office  at  the  end  of  the  year,  and 
put  in  others  who  will  perform  their  duties. 

Every  trustee  who  refuses  or  neglects  to  render  an  account  of 
moneys  received  and  expended,  is  liable  to  a  penalty  of  $25, 
sec.  100,  page  486,  1  R.  S.  The  penalty  may  be  recovered  of 
each  trustee  separately. 

If  trustees  neglect  to  report  at  the  proper  time,  a  report  ought 
to  be  received  from  them  subsequently,  without  insisting  on  the 
forfeiture. 

The  Commissioners  of  Common  Schools  of  the  town 
of  Almond,  ex  parte. 

Trustees  of  school  districts  must  see  to  the  execution  of  all  contracts  entered 
into  by  them;  but  this  rule  will  not  be  allowed  to  interfere  with  the  legal  rights 
of  third  persons. 

Two  trustees  of  a  school  district  engaged  a  teacher  for  one 
year,  in  pursuance  of  the  request  of  the  inhabitants  at  a  special 
meeting.  Before  the  expiration  of  his  term,  new  trustees  were 
elected.  The  question  arose  whether  the  trustees  who  made  the 
contract  with  the  teacher  should  attend  to  the  settlement  of  his 
accounts,  or  whether  he  must  look  to  the  trustees  in  office. 

By  John  A.  Dix,  October  19, 1836.  The  Superintendent  of 
Common  Schools  has  always  required  that  trustees  should  sec  to 
the  execution  of  all  contracts  entered  into  by  them.  This  rule 
was  designed  as  a  prudential  regulation  for  their  government, 


314  CA8ES    DECIDED   ttf  fllR       rsAMn  ^ 

aad  not  to  be  carried  so  far  as  to  interfere  with  the  legal  rights 
of  third  persons.  Thus,  if  notwithstanding  the  directions  of  the 
Superintendent,  trustees  go  out  of  office  without  settling  with  a 
teacher  employed  by  them,  he  has  no  legal  remedy  against  them ; 
and  if  he  is  compelled  to  seek  redress  through  the  judicial  tribu- 
nals, he  must  bring  his  suit  against  their  successors,  or  the  tru8« 
tees  actually  in  office.  The  supreme  court  of  this  state  (7  Wen- 
dell, page  181,)  has  decided  that  contracts  for  teachers'  wages 
by  trustees  of  school  districts  are  binding  on  their  successors  in 
office.*     This  settles  the  whole  question-. 

The  Clerk  of  joint  school  district  No.  14  in  the  town^ 
of  Marcellus  and  Skaneateles,  ex  parte. 

A  refusal  to  serv«  as  an  oflScer  of  a  school  district  vacates  the  office. 
A  refusal  to  serve  must  be  shown  by  an  express  declaration,  and  c&nnot  be  in- 
ferred from  a  neglect  to  perform  the  duties  of  the  office. 

The  following  question  was  presented  for  the  decision  of  the 
Superintendent  by  the  clerk  of  joint  school  district  No.  14  in 
the  towns  of  Marcellus  and  Skaneateles :  Does  a  neglect  to  act 
for  any  given  time  constitute  a  refusal  to  accept  the  office  of  trus- 
tee of  a  school  district  ?  For  instance :  A  tax  is  voted,  and  the 
trustees  omit  to  make  out  a  tax  list  for  one  month.  Can  new 
trustees  be. then  chosen? 

By  J&HN  A.  Dix,  November  14,  1836.  If  trustees  and  other 
district  officers  are  regularly  chosen  at  an  annual  meeting,  others 
cannot  be  elected  in  their  places  until  vacancies  occur,  or  uiitil 
their  term  of  office  expires.  A  refusal  to  serve  constitutes  a  va- 
cancy. It  appears  to  me  that  there  must  be  an  express  declara- 
tion by  the  party  of  his  determination  not  to  act,  in  order  to  au- 
thorize a  prosecution  under  the  provision  which  annexes  a  pe- 
nalty of  five  dollars  to  a  refusal  to  serve.  Neglect  of  the  duties 
of  the  office  does  not  constitutfe  such  a  refusal  as  is  contemplated 
by  the  provision  referred  to ;  for  to  such  neglect  (which  by  a  de- 
cision of  the  supjeme  court,  must  be  a  general  neglect,  and  not 
an  omission  to  perform  any  specific  act, t)  a  penalty  of  ten  dollars 
is  annexed ;  and  this  penalty  is  only  incurred  in  cases  in  which 
the  party  has  not  "  refused  (o  accept."  A  refusal  to  serve  must 
therefore,  I  think,  be  shown  by  an  express  declaration  to  that 
effect,  and  cannot  be  inferred  from  a  neglect  to  perform  the  du- 
ties of  the  office.  \ 

*  See  a  case  reported  at  page  191. 

t  See  a  case  presented  by  the  inhabitants  of  this  district,  page  164. 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  315 

The  Commissioners  of  Common  Schools  of  the  towft 
of  Greene,  ex  parte. 

ff  a  tax  is  raised  in  a  school  district  for  any  object,  and  the  whole  amount  is  not 
required,  the  balance  may  be  applied  by  vote  of  the  district  to  any  other  au- 
thorized object.  •  ' 

A  tax  was  raised  in  a  school  district  in  the  town  of  Greene  for 
the  purpose  of  building  a  school-house^  and  on  account  of  a  re- 
duction in  the  amount  paid  on  the  contract,  as  an  offset  to  a 
part  of  the  work  not  properly  executed,  the  whole  sum  collected 
for  the  purpose  was  not  expended.  The  question  presented  to  the 
Superintendent  was,  whether  the  balance  thus  remaining- in  the 
hands  of  the  trustees  could,  by  a  vote  of  the  district,  be  appro- 
priated to  any  other  object? 

By  John  A.  Dix,  November  21,  1836.  If  a  tax  is  voted 
for  any  object,  am)  the  whole  amount  jaised  is  not  expended,  the 
inhabitants  of  the  district  may  by  vote  apply  it  to  any  other  ob- 
ject for  which  a  tax  may  by  law  be  voted.  The  trustees  have 
na  power  to  do  so  without  such  a  vote. 

The  Trustees  of  joint  school  district  No. in  t|ie 

towns  of  Locke  and  Groton,  ex  parte. 

fn  assessing  taxes  in  joint  school  districts,  the  last  assessment  roll  in  each  town 
must  be  followed  with  respect  to  the  taxable  property  wilhin  it,  although  the 
assessors  of  the  two  towns  may  have  different  standards  of  valuation. 

,  Thb  was  an  application  to  the  Superintendent  for  his  direc- 
tion in  a  case  in  which  the  taxable  property  of  a  joint  school 
district  was  uriequally  assessed  in  cx)n3equence  of  the  different 
standards  of  valuation  assumed  by  the  assessors  of  the  two  towns 
in  which  the  district  was  situated  ;  the  assessors  of  one  town 
having,  as  the  trustees  alleged,  assessed  the  property  within  it 
at  its  full  value,  while  the  assessors  of  the  other  had  estimated 
the  property  within  it  at  about  one  quarter  of  its  real  value. 

By  John  A.  Dix,  November  22,  1836.  Taxes  for  common 
school  purposes  must  be  assessed  according  to  the  valuations  of 
property  as  ascertained  by  the  last  assessment  roll  of  the  town. 
There  is  no  authority  to  depart  from  it  excepting  in  two  cases 
specified  in  the  common  school  act,  viz:  where  a  reduction  is 
claimed,  and  where  the  valuations  cannot  be  ascertained  from 
the  last  assessment  roll  of  the  town.  In  joint  school  districts  the 
roll  of  each  town  must  be  consulted  as  to  the  persons  residing  in 
each.  If  the  assessors  of  the  two  towns  have  different  standards 
of  x-aluation  there  is  no  remedy  for  it.  I  have  no  power  to  vary 
the  assessments  of  town  aasessors,  nor  do  I  know  any  mode  of 
correcting  such  inequalities  excepting  by  the  equalization  to  be 


316  CASES    DECIDED    BT    THE      it>M9« 

made  by  the  boards  of  supervisors.  I  regard  the  practice  of  as- 
sessing property  at  one  half,  and  sometimes  one  quarter  of  its 
real  value,  as  one  of  the  greatest  abuses  that  exist ;  and  it  is 
difficult  to  comprehend  how  assessors,  sworn  to  discharge  their 
duties  faithfully,  should  totally  disregard  in  many  cases  I  he  legal 
requirement  which  makes  it  incumbent  on  them  to  estimate  pro- 
perty "at  its  full  value,  as  they  would  appraise  the  same  in  pay- 
ment of  a  just  debt  due  from  a  solvent  debtor."  In  most  ca- 
ses, doubtless,  assessors  consider  themselves  justifiable  in  adopt- 
ing the  standards  of  previous  years;  but  usage  certainly  consti- 
tutes no  justification  of  such  a  practice,  nor  is  a  public  officer 
warranted  in  abusing  his  official  trust  because  his  predecessor 
has  done  so  before  him. 

The  Trustees  of  school  district  No in  the  town 

of  Bridgewater,  ex  parte. 

A  tax  cannot  be  voted  for  arrearages,  or  to  reimburse  trustees  for  moneys  ex- 
pended by  them,  unless  it  appears  by  the  vote  that  the  money  is  to  be  applied 
to  one  of  the  objects  for  which  taxes  may  by  law  be  voted. 

This  was  an  application  for  the  opinion  of  the  Superintendent 
with  regard  to  the  legality  of  a  vote  to  raise  a  tax  to  pay  certaiii 
arrearages  due  the  trustees  of  one  of  the  school  districts  in  the 
town  of  Bridgewater,  on  account  of  fuel  which  they  had  provid- 
ed, and  repairs  made  on  the  school-house  and  paid  for  by  them. 
The  vote  did  not  specify  the  objects  for  which  the  expenditure 
was  to  be  made,  but  stated  generally  that  it  was  to  reimburse 
the  trustees  for  moneys  expended  by  them. 

By  John  A.  Dix,  December  12,  1836.  A  tax  "  for  arreara- 
ges" or  "to  reimburse  the  trustees  for  moneys  expended  by 
them,"  is  not  legal.  Taxes  can  only  be  laid  by  the  inhabitants 
of  school  districts  for  certain  objects  enumerated  in  the  statute 
entitled  "  Of  common  schools;"  and  it  must  appear  by  the  re- 
solution or  vote  imposing  the  tax,  that  the  amount  to  be  levied 
is  to  be  appropriated  to  one  of  those  objects.  If  the  trustees  of  a 
district  expend  money  for  repairs  or  fuel,  and  the  inhabitants 
wish  to  reimburse  them,  a  vote  to  that  effect  may  be  passed,  and 
a  tax  raised ;  but  the  vote  must  show  that  the  money  is  to  be 
applied  to  reimburse  the  trustees  for  a  sum  or  sums  expended  for 
repairs  or  fuel.* 

*  See  the  case  of  the  trustees  of  joint  school  district  No.  1 7  in  the  towns  of  Ca- 
tharine and  Catlin,  page  218. 


SrPERINTENDENT    OF   COMIMION   SCHOOLS.  317 

The  Trustees  of  school  district  No. in  the  town 

of  Maryland,  ex  parte: 

If  a  special  meeting  is  called  for  the  purpose  of  laying  a  tax  to  build  a  school- 
house,  the  notice  is  sufficient  to  justify  the  inhabitants  in  voting  a  tax  to  pur- 
chase a  house  already  constructed. 

In  this  case  a  notice  was  given  for  a  special  meeting,  setting 
fortli  that  the  object  of  the  meeting  was  to  raise  money  to  build 
a  school-house.  The  inhabitants  being  assembled,  voted  to  pur- 
chase a  house,  which  was  offered  to  them  for  a  school-house, 
and  a  tax  was  laid  accordingly.  The  question  submitted  to  the 
Su{)erintendent  was,  whether  the  notice  was  sufficient  to  justify 
the  proceeding? 

By  John  A.  Dix,  December  12^  1836.  The  proceeding  in 
your  school  district,  in  relation  to  voting  a  tax  to  purchase  a  school- 
house,  was  legal,  and  the  money  ought  to  be  collected  promptly. 
I  suppose  the  only  question  is,  whether  the  notice  was  sufficient? 
On  this  point  there  can  be  no  reasonable  doubt.  A  call  of  a 
meeting  to  raise  money  to  build  a  school-house,  so  clearly  indi- 
cates the  object  that  no  objection  can  properly  be  made,  if,  after 
full  consideration  at  the  meeting,  it  is  determined  to  purchase  a 
house,  instead  of  building  one. 

A.  B.  a  non-resident  owner  of  property  in  school  dis- 
trict No.  21  in  the  town  of  Chemung,  ex  parte. 

The  residence  of  the  parent  is  the  residence  of  the  child. 

If  a  non-resident  owner  of  taxable  property  sends  his  children  into  the  district  in 
which  such  property  lies,  for  the  purpose  of  attending  school,  they  have  a 
strong  equitable  claim  to  be  received,  unless  by  their  admission  the  school 
would  become  too  crowded. 

A.  B.  a  taxable  inhabitant  of  school  district  No.  21  in  the 
town  of  Chemung,  moved  out  of  said  district  into  an  adjoining 
one,  still  retaining  his  property  in  the  former,  in  which  he  had, 
during  the  preceding  two  or  three  years,  paid  for  the  erection  of 
the  school-house  more  than  one-fourth  part  of  its  whole  value. 
As  he  was  desirous  of  continuing  his  children  at  the  school  in 
district  No.  21,  he  sent  them  into  the  district  and  procured  board 
for  them  in  the  neighborhood  of  the  school-house,  and  sent  them 
to  the  school  until  they  were  dismissed  from  it  by  the  trustees, 
on  the  ground  that  their  parents  were  non-residents.  The  ques- 
tion presented  to  the  Superintendent  was,  whether  this  proceed- 
ing on  the  part  of  the  trustees  was  legal? 

By  John  A.  Dix,  December  12,  1836.  I  am  sorry  to  say 
that  according  to  the  whole  course  of  the  decisions  of  the  Superin- 
tendent, your  children  have  not  a  legal  right  to  attend  the  school 
in  district  No.  21,  though  you  are  taxable  in  that  district.     Their 


<• 
* 


318  '.HAC   -CASES    DECIDED    BV    THE 

exclusion  by  the  trustees  cannot,  however,  be  regarded  otherwise 
than  as  exceedingly  illiberal,  unless  the  school  would,  by  admit- 
ting them,  become  too  crowded.  The  rule  which  the  Superin- 
tendent established  at  a  very  early  day,  is  that  "the  residence 
of  the  parent  is  the  residence  of  the  child,  and  that  boarding 
children  in  a  school  district  does  not  give  them  the  right  to  at- 
tend the  district  school."  The  rule  was  considered  to  be  in  strict 
accordance  with  the  intention  of  the  law  authorizing  the  con- 
venient division  of  towns  into  school  districts,  and  was  also  deem- 
ed indispensable  to  guard  against  the  evils  of  withdraw  ing  from 
one  school  and  conferring  on  another  the  support  to  which  the 
former  was  justly  entitled ;  evils  which  would  often  be  felt  in  the 
absence  of  such  a  rule.  At  the  same  time  I  have  always  consider- 
ed persons  owning  taxable  property  in  a  school  district,  though 
non-residents,  as  having  a  strong  equitable  claim  to  a  privilege  for 
their  children  in  the  school  of  the  district  in  which  they  are  tax- 
able. Their  property  contributes  to  support  the  school,  and  their 
children  should  equitably  be  allowed  to  attend,  on  paying  their 
proper  proportion  of  the  teacher's  wages.  In  this  respect  they 
stand  on  ground  essentially  different  from  that  of  persons  send- 
ing children  into  districts  in  which  they  have  no  taxable  pro- 
perty. This  is  one  of  the  instances,  however,  in  which  a  re- 
gard to  the  general  design  of  the  law  cannot  be  made  to  bend  to 
the  equity  of  a  particular  case.  Still  I  am  sure  tliat  the  exclu- 
sion of  children  from  a  school  under  such  circumstances,  though 
the  trustees  have  the  legal  right,  would  be  universally  regarded 
as  unjust  and  illiberal,  unless  by  their  admission  the  school  would 
become  so  crowded  as  to  interfere  with  the  instruction  of  the  chil- 
dren of  resident  parents. 

The  taxable  inhabitants  of  school  district  No.  10  m 
the  town  of  Schodack,  ex  parte. 

Colored  persons  may  vote  at  school  district  meetings. 

This  was  an  application  for  the  opinion  of  the  Superintendent 
by  several  of  the  taxable  inhabitants  of  school  district  No.  10  in 
the  town  of  Schodack,  with  regard  to  the  right  of  colored  per- 
sons, who  had  been  assessed  to  pay  highway  taxes,  to  vote  at 
school  district  meetings. 

By  John  A.  Dix,  December  27,  1836.  Colored  persons 
have  a  right  to  vote  at  meetings  in  the  school  districts  in  which 
they  reside,  if  they  have  the  requisite  qualifications  of  property, 
or  if  they  have  been  assessed  to  pay  highway  taxes  in  the  tow« 
during  the  year  in  which  they  vote,  or  the  preceding  year.  The 
construction  which  has  been  given  to  the  statute  relating  to  the 
qualifications  of  voters  in  school  districts,  with  respect  to  aliens, 


SUPERINTENDENT    OF   COMMON    SCHOOLS.  319 

48  considered  equally  applicable  to  this  case.*  Indeed,  colored 
persons  are  permitted  to  vote  at  popular  elections  under  certain 
circumstances,  and  the  construction  referred  to  may,  perhaps,  be 
urged  with  greater  force  in  their  favor  than  in  the  case  of  aliens, 
who  are  not  allowed  in  any  case  to  vote  at  such  elections. 

The  taxable  inhabitants  of  school  district  No.  6  in 
the  town  of  Clarkstown,  ex  parte. 

In  assessing  a  tax  for  school  district  purposes,  personal  notice  to  the  persons  inte- 
rested need  not  be  given  where  a  reduction  is  claimed,  or  where  the  valuations 
"  of  property  cannot  be  ascertained  from  the  last  assessment  roll  of  the  town. 

This  was  an  application  by  the  taxable  inhabitants  of  school 
district  No.  6  in  the  town  of  Clarkstown  for  the  opinion  of  the 
Supeiintendent,  with  regard  to  the  nature  of  the  notice  to  be 
given  when  the  trustees  of  a  school  district,  in  assessing  a  tax, 
do  not  follow  the  last  assessment  roll  of  the  town. 

By  John  A.  Dix,  January  12,  1837.  In  assessing  a  tax,  a 
personal  notice  is  not  necessary  where  a  reduction  is  claimed,  or 
where  the  valuation  of  taxable  property  cannot  be  ascertained 
from  the  last  assessment  roll  of  the  town.  The  notice  is  such 
a  one  as  town  assessors  are  required  to  give:  that  is,  a  notice 
must  be  put  up  in  three  or  more  public  places  within  the  district. 

It  might  be  supposed,  at  first  glance,  that  under  the  provisions 
of  sec.  80  of  the  revised  statute  in  relation  to  common  schools,  a 
personal  notice  to  the  individuals  immediately  concerned  was  ne- 
cessary, as  the  trustees  are  required,  in  the  cases  for  which  those 
provisions  are  framed,  "to  ascertain  the  true  value  of  the  property 
to  be  taxed  from  the  best  evidence  in  their  power,  giving  notice  to 
the  persons  interested,  and  proceeding  in  the  same  manner  as  the 
town  assessors,"  (fcc.  But  I  am  satisfied  that  the  intention  of 
the  law  was  otherwise.  If  I  err  in  this  construction,  it  appears 
to  me  that  a  personal  notice  to  every  inhabitant  would  be  neces- 
sary whenever  a  reduction  is  claimed.  For  if  the  property  of  an 
individual  be  assessed  on  the  town  roll  at  $10,000,  and  he  claims 
a  reduction  to  $5,000,  all  the  other  taxable  inhabitants  are  in- 
terested in  resisting  the  claim,  because  if  it  is  allowed,  their  own 
assessments  must  be  relatively  increased.  The  imposition  of 
taxes  in  school  districts  is  usually  a  matter  of  notoriety;  and  if, 
in  cases  where  the  town  assessment  roll  does  not  furnish  all  the 
facts  necessary  to  enable  the  trustees  to  assess  them,  or  where  an 
individual  claims  a  reduction  of  the  valuation  of  his  property  as 
ascertained  by  that  roll,  a  notice  is  put  up  in  three  public  places 
in  the  district,  it  can  rarely  happen  that  all  concerned  are  not  ap- 

*  See  a  decision  by  A.  0.  Flagg,  March  16,  1831,  page  76,  ;  : 


3^  CASES    DECIDED    BT   THE  '  '- 

prized  of  the  proceedings  of  the  trustees  so  as  to  have  an  oppor- 
tunity of  protecting  themselves  against  unjust  assessments. 

Poineroy  Jones,  a  taxable  inhabitant  of  joint  school 
district  No.  5  in  the  towns  of  Vernon  and  West- 
moreland, against  the  Commissioners  of  Common 
Schools  of  said  towns  and  of  the  town  of  Kirk- 
land. 

Proceedings  void  for  want  of  authority  will  be  declared  so,  on  application  to  tfie 
Superintendent,  after  tlie  expiration  of  the  time  limited  for  bringing  appeals. 

Trustees  of  school  districts  should  not  give  a  general  consent  before  hand  to  al- 
terations to  be  made  in  their  school  districts,  but  such  consent  should  be  limit- 
ed to  specific  alterations. 

If  parties  are  apprized  that  proceedings  are  to  be  objected  to  on  the  ground  of  ille- 
gality, it  is  their  own  fault  if  they  do  acts,  by  virtue  of  such  proceedings,  with- 
out assuring  themselves  that  they  are  legal. 

The  facts  of  the  case  are  fully  stated  in  the  Superintendent'? 
decision. 

By  John  A.  Dix,  January  23, 1837.  This  is  an  appeal  by 
Pomeroy  Jones,  a  taxable  inhabitant  of  school  district  No.  5  ly- 
ing partly  in  the  town  of  Vernon  and  partly  in  the  town  of  West- 
moreland, from  the  proceedings  of  the  commisffloners  of  common 
schools  of  said  towns  and  of  the  town  of  Kirkland,  in  annexing 
to  it  part  of  school  district  No.  6  lying  partly  in  the  town  of  West- 
moreland and  partly  in  the  town  of  Kirkland,  and  from  the  pro- 
ceedings of  the  commissioners  of  the  two  former  towns  in  form- 
ing school  districts  No.  21  and  22.  The  facts  of  the  case  ar^ 
as  follows : 

On  the  14th  day  of  March,  1836,  the  commissioners  of  com- 
mon schools  of  the  towns  of  Vernon,  Westmoreland  and  Kirk- 
land set  off  to  joint  district  No.  5  in  Vernon  and  Westmoreland, 
all  that  part  of  joint  district  No.  6  in  Westmoi eland  and  Kirk- 
land, which  lies  on  the  Seneca  turnpike  road.  To  the  record 
of  this  alteration  the  consent  of  the  trustees  of  neither  of  the 
districts  is  annexed. 

On  the  22d  day  of  March,  eight  days  after  the  above  altera- 
tion, orders  were  issued  by  the  commissioners  of  common  schools 
of  the  towns  of  Westmoreland  and  Vernon  forming  two  new  dis- 
tricts by  the  designation  of  districts  No.  21  and  22.  District  No. 
21  was  formed  from  part  of  No.  5  and  from  part  of  No.  2  in  the 
town  of  Westmoreland,  together  with  iliat  part  of  district  No.  6, 
which,  by  the  order  of  the  14th  of  March,  was  set  off  to  No.  5. 
To  this  alteration  the  consent  of  the  trustees  of  district  No.  5  u 
given :  but  neither  the  consent  of  the  trustees  of  No.  6  nor  of  No. 
2  is  made  a  part  of  the  record.  District  No.  22  was  formed  from 
part  of  No.  5  and  part  of  district  No.  11  in  Westmoreland.     To 


SUPERINTENDENT    OF   COMMON    SCHOOLS.  321 

the  record  of  this  alteration  the  consent  of  the  trustees  of  botti 
districts  is  annexed. 

As  a  preliminary  question  it  becomes  necessary  to  inquire 
whether  the  rules  of  the  Superintendent,  in  relation  to  appeals, 
have  been  complied  with?  It  appears  by  reference  to  the  papers 
submitted  by  the  appellant  that  eiojht  months  were  allowed  to 
elapse  before  his  appeal  was  presented.  His  excuse  for  €0  great 
a  delay  is,  that  he  was  absent  in  Albany  whe^  the  proceedings 
complained  of  took  place.  And  thai  lie  could  not,  for  a  long 
time  after  his  return,  piocure  swch  proof  of  the  illegality  of  the 
proceedings  as  to  warrant  an  Eippeal.  It  is  doubtless  within  the 
knowledge  of  the  appellant  that  investigatioiis  are  made  by  the 
Superintendent  upon  other  grounds  ttiafi  aa  allegation  of  ille- 
gality. Proceedings,  though  strictly  legal,  may  be  set  aside  if 
foimd  grievous  to  comj^ainaats.  When  proceedings  are  object- 
ed to  because  they  are  merely  irregular,  or  because  the  objectors 
are  aggrieved  by  them,  appeals  must  be  presented  within  thirty 
days.  If  no  other  reasons  were  urged  in  this  case,  the  excuse 
offered  by  the  appellant  would  not  be  considered  sufficient.  The 
facts  were  all  within  the  compass  of  a  few  laeighboring  districts, 
and  with  due  diligence  it  would  have  been  extraordinary  if  they 
could  not  have  been  ascertained.  But  the  appellant  further  al- 
leges that  he  has,  since  the  last  of  October,  discovered  facts  and 
proofs  of  which  he  had  no  previous  knowledge;  and  which  show 
the  proceedings  of  the  commissioners  to  be  null  and  vwd.  If 
this  position  can,  be  established,  the  appeal  will  be  entertained. 
Void  proceedings,  or  acts  done  wholly  without  authority,  will  be 
pronounced  void,  when  they  are  brought  up  for  adjudication, 
although  they  may  not  have,  been  objected  to  within  the  time 
limited  for  presenting  appeals. 

The  first  defect  in  the  proceedings  of  the  commissioners  is  thf 
want  of  the  consent  of  the  trustees  of  school  districts  No.  5  and 
6  to  the  alteration  occasioned  by  the  addition  of  part  of  tl?e  latter 
to  the  former.  This  defect  does  not  render  the  proceedings  void. 
The  commissioners  of  common  schools  had  authority  to  make 
the  alteration  without  such  consent;  but  it  could  not  take  effect 
until  three  months  after  notice  in  writing  to  some  one  or  more  of 
the  trustees  of  each  district. 

It  is  alleged  by  the  commissioners  of  common  schools  of  the 
towns  of  Westmoreland  and  Vernon,  that  the  formation  of  dis- 
tricts No.  21  and  22  was  agreed  on  by  them  on  the  14th  of 
March,  although  the  orders  were  not  issued  until  the  22d.  If  this 
■svcre  so,  the  consent  of  the  trustees  of  school  districts  No.  5  and  6 
to  the  alteration  occasioned  by  adding  to  the  former  part  of  the 
latter,  was  requisite,  to  enable  the  commissioners  of  the  towns  of 
Westmoreland  and  Vernon  to  set  off  the  part  so  added;  otherwise 

21 


32^ 


CASES    DECIDED    BY   THE 


the  alteration  would  not  take  effect  until  the  expiration  of  tfirec 
months  after  notice  in  writing  to  the  trustees  of  both  districts. 
But  the  order  creating  district  No.  21  shews  on  its  face  a  want 
of  authority  on  the  part  of  the  commissioners  of  common  schools 
of  the  towns  of  Westmoreland  and  Vernon  to  form  it.  The 
district  is,  according  to  the  order,  formed  from  part  of  district  No. 
5,  lying  partly  in  the  town  of  Westmoreland,  arki  partly  m  the 
town  of  Verrwn ;  and  part  of  district  No.  6,  lying  partly  iw  the  towft 
of  Westmoreland,  and  partly  in  the  town  of  Kirklar)d.  The  com- 
missioners of  common  schools  of  the  town  of  Kirkland  should 
therefore  have  united  in  the  order.  The  trustees  of  district  No. 
6  swear  that  they  never  consented  to  a  transfer  of  part  of  that 
district  to  No.  5.  The  order  of  the  14th  March  could,  therefore, 
not  have  gone  into  effect ;  and  although  the  part  of  No.  6  added 
to  No.  5  was  wholly  within  the  town  of  Westmoreland,  it  was,  at 
the  time  district  No.  21  was  formed,  part  of  joint  district  No.  (>, 
which  was  partly  in  the  town  of  Kirkland ;  and  the  commis- 
sioners oi  the  latter  town  must  have  united  in  the  order  form- 
ing that  district,  to  give  it  validity.  If  the  order  of  the  14th 
of  March,  setting  off  to  No.  5  th«  part  of  No.  6  which  was 
subsequently  added  to  No.  21,  had  gone  into  effect,  the  forma- 
tion of  the  latter  Avould  have  been  valid  without  the  concurrence 
of  the  commissioners  of  Kirkland.  But  with  what  propriety 
can  this  be  assumed,  when  the  trustees  of  No.  6  swear  that  they 
never  consented  to  the  transfer  of  a  part  of  that  district  to  No.  5, 
and  when  the  order  of  the  22d  March,  issued  by  the  commis'- 
sioners  of  Westmoreland  and  Vernon,  sets  forth,  that  part  of 
the  former  is  taken  to  form  the  new  district?  The  two  tiustees 
of  district  No.  6,  who  swear  that  they  never  consented  to  a  trans- 
fer of  part  of  that  district  to  No.  5,  state  in  an  affidavit  a[^nded 
to  the  papers  of  the  respondent,  that  they  gave  'Hheir  consent 
to  have  that  part  of  district  No.  6,  lying  on  the  Seneca  turnpike 
road,  set  off  from  said  district,  for  the  purpose  of  forming  a  new 
district  and  such  othei-s  as  the  commissioners  should  think  pro- 
per." No  such  consent  is  annexed,  as  it  should  have  been,  either 
to  the  order  of  the  commissioners  dividing  district  No.  6,  or  their 
order  forming  district  No.  21.  Besides^  if  such  consent  was  giv- 
en to  the  extent  above  stated,  it  was  wholly  unjustifiable  on  the 
part  of  the  trustees.  They  are  the  immediate  guardfens  of  the 
interests  of  their  district ;  they  are  presumed  to  umJerstand  its 
wants ;  and  it  is  a  misuse  of  the  authority  confided  to  them,  to 
give  a  sweeping  consent  to  any  alterations  in  their  disti^ict,  which 
the  commissioners  may  choose  to  make.  The  law  has  given 
them  power  to  prevent  alterations  from  going  into  effect  for  three 
months,  by  declining  to  give  their  consent  to  them  ;  and  the  de- 
sign wasj  to  enable  the  trustees  to  protect  ihenaselves  and  the  in- 


SUPERINTENDENT    OF   COMMON    SCHOOLS.  323 

terests  of  their  district.  But  by  consenting  beforehand  to  such 
alterations  as  the  commissioners  may  think  proper,  the  trustees, 
if  such  consent  is  valid,  disarm  themselves,  and  put  it  out  of 
of  their  power  to  object  at  a  subsequent  time,  to  alterations  which 
they  may  not  approve.  The  consent  of  trustees  should  only  be 
given  to  specific  alterations  ;  and  if  their  consent  is  obtained  in 
advance,  the  precise  alteration  to  which  it  is  intended  to  be  given 
should  be  fully  and  explicitly  stated. 

In  addition  to  these  objections,  the  order  of  the  22d  March, 
forming  district  No.  21 ,  includes  as  part  of  it,  two  persons,  Messrs. 
Roberts  and  Osgood,  belonging  to  district  No.  2  in  Westmore- 
land ;  and  it  does  not  appear  by  the  record  that  the  consent  of 
the  trustees  of  that  district  to  the  alteration  was  obtained,  or  that 
any  notice  of  it  was  served  on  them.  Indeed,  district  No.  2  is 
not  named  in  the  order,  nor  does  it  appear  that  any  part  of  it  is 
included  in  the  new  district,  except  by  referring  to  Calvin  Os- 
good's east  line  as  one  of  the  boundaries  of  No.  21.  The  order 
is.  therefore,  on  its  face  both  defective  and  contradictory,  in 
setting  forth  that  the  new  district  is  to  be  formed  "  partly  out 
of  district  No.  5  and  partly  out  of  district  No.  6."  while  it  ac- 
tually includes  by  name  one  individual  belonging  to  No.  2,  with- 
out mentioning  the  latter  district  at  all.  It  is  incidentally  men- 
tioned in  a  parenthesis  in  an  affidavit  made  by  the  commission- 
ers of  common  schools  of  the  town  of  Westmoreland,  that  the 
transfer  of  Messrs.  Roberts  and  Osgood  was  with.the  consent  of 
the  trustees  of  No.  2 ;  but  under  any  circumstances,  it  is  con- 
ceived that  the  fact  should  have  been  explicitly  averred,  if  it  was 
impossible  to  produce  the  written  consent. 

The  Superintendent  is  aware  that  the  formation  of  a  new  dis- 
trict from  part  of  No.  6  had  been  for  some  time  under  discussion, 
and  that  the  propriety  of  the  measure  had  been  conceded  by  the 
trustees  and  a  majority  of  the  inhabitants  of  the  district  5  but  the 
commissioners,  in  adopting  an  indirect  course  of  proceeding, 
should  have  taken  care  to  keep  within  the  limits  of  their  authority. 
Such  is  the  condition  of  the  records,  now,  that  the  Superintendent 
cannot  declare  their  proceedings  to  be  valid,  without  assuming 
that  the  consent  of  the  trustees  of  district  No.  6  was  actually  given 
to  the  alteration  made  by  the  order  of  the  14th  of  March,  though 
their  affidavit  shows  the  contrary  ;  that  the  two  new  districts 
were  actually  created  on  the  14th  March,  when  the  oiders  form- 
ing them  are  dated  the  22d  of  that  month :  and  that  the  per- 
sons on  the  Seneca  turnpike  road,  set  off  to  district  No.  21, 
were  not,  at  the  time  they  were  so  set,  inhabitants  of  district  No. 
6,  though  the  order  of  the22d  March  shows  them  to  be  so. — 
Much  as  the  Superintendent  is  disposed  to  sustain  the  proceed- 
ings of  officers  engaged  in  the  administration  of  the  common 


324  jA  CASES    DECIDED    BY   THE    , 

scho(4  system,  he  cannot  go  so  far  as  to  give  jurisdiction,  by 
such  a  train  of  assumptions,  where  none  appears  by  tlie  records 
to  have  been  possessed. 

But  there  are  other  considerations  which  it  may  be  proper  to 
advert  to,  with  reference  to  the  possible  future  action  of  the  com- 
missioners in  respect  to  these  districts.  District  No.  5  has,  in 
the  opinion  of  the  Superintendent,  lieen  unjustly  reduced  in 
strength.  By  the  statement  of  the  respondent,  it  appears  that 
the  district  on  the  31st  December,  1835,  had  57  children,  be- 
tween 5  and  16  years  of  age,  and  that  the  number  was  by  the 
division  made  to  form  di^rict  No.  21,  reduced  to  46.  But  there 
are  included  in  this  statement  nine  children  who  were  set  off  tO' 
district  No.  22,  and  the  children  of  the  appellant,  who  was 
left  in  such  a  condition  that  it  did  not  appear  satisfactorily  to 
which  district  he  belonged.  On  the  other  hand  the  statement 
of  the  appellant  shows,  that  the  number  of  children  between  5 
and  16  years  of  age,  now  residing  in  the  district,  is  but  18,  in 
addition  to  his  own.  The  Superintendent  is,  therefore,  left  to 
infer,  that  between  the  31st  December.  1835,  and  the  time  when 
the  appeal  was  made,  the  number  of  children  in  district  No.  5 
has  been  reduced  to  the  extent  set  forth  by  the  appellant.  But 
admitting  the  number  of  children  given  by  the  respondent  to 
have  been  the  true  number  in  the  district,  at  the  time  the  several 
dismemberments  to  which  it  was  subjected  were  made,  the  dis- 
trict was,  in  this  respect,  reduced  below  the  average  strength  of 
the  other  districts  in  the  state,  and  as  the  result  has  proved,  a 
considerable  portion  of  the  population  left,  w  as  not  of  sxich  a 
fixed  character  as  to  enable  it  to  maintain  itself. 

The  forn>ation  of  district  No.  22  was  not  illegal.  It  was  crea- 
ted by  the  commissioners  of  conmion  schools  of  the  towns  of 
Westmoreland  and  Yemen,  and  taken  from  districts  lying  whol- 
ly within  those  towns  :  but  as  the  formation  of  that  district  was 
a  part  of  the  transactions  under  review,  and  as  the  propriety  of 
its  organization  as  a  separate  district  may  be,  in  some  respectSy 
affected  by  the  future  disposition  to  be  made  of  district  No  5,  the 
Superintendent  does  not  deem  it  expedient  to  make  any  distinc- 
tion between  this  part  of  the  proceedings  and  that  which  relate;* 
to  district  No.  21 ;  especially  as  no  school-house  has  been  built  in 
district  No.  22,  and  there  are  no  equitable  rights  to  be  impaired. 

The  Superintendent  regrets  that  a  school-house  has  been  built 
in  district  No.  21,  and  that  it  will,  in  case  that  district  was  illegal- 
ly formed,  be  left  on  the  hands  of  those  who  have  constructed  it : 
but  if  he  had  power  to  declare  proceedings  without  authority  to 
be  valid,  there  are  considerations  which  might  render  the  pro- 
priety of  his  interposition  for  the  protection  of  the  trustees  of  dis^ 
trict  No.  21  at  least  doubtful.     The  respondent,  Charles  Porter. 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  325 

is  a  trustee  of  the  new  district,  as  he  was  of  No.  6,  before  tfie 
laiter  was  divided,  and  it  was  principally  through  his  influence 
and  exertions  that  the  new  district  was  formed.  He  states  in  his 
affidavit,  that  the  appellant,  soon  after  his  return  from  Albany, 
in  the  spring  of  1836,  informed  him  that  he  considered  the  pro- 
ceedings of  the  commissioners  illegal,  and  that  he  should  '-  appeal 
to  the  Superintendent  as  soon  as  he  could  get  time,  and  rip  it  all 
up."  The  respondent  should  have  taken  warning  from  this  de- 
claration, and  have  ascertained  at  least,  that  the  proceedings 
were  not  deficient  in  that  ground  work  of  authority  without 
which  the  Superintendent  would  have  no  power  to  sustain  them. 
The  utmost  that  can  be  done  by  him,  is  to  authorize  the  com- 
missioners to  reassemble,  and  do  what  justice  may  seem  to  them 
to  demand. 

It  is  accordingly  ordered,  that  the  proceedings  of  the  commis- 
sioners of  common  schools  of  the  towns  of  Westmoreland,  Ver- 
non and  Kirkland,  in  setting  off  part  of  school  district  No.  6  to 
school  district  No.  5  as  aforesaid,  on  the  1 4th  of  March  last,  and 
the  proceedings  of  the  commissioners  of  the  two  former  towns, 
in  forming  school  district  No.  22,  on  the  22d  of  the  same  month, 
be  and  they  are  hereby  set  aside ;  and  it  is  hereby  declared,  that 
the  proceedings  of  the  commissioners  of  the  two  former  towns, 
in  forming  school  district  No.  21,  on  the  22d  of  the  same  month, 
are  void  and  of  no  effect:  and  the  commissioners  of  the  said 
three  towns  are  hereby  authorized,  notwithstanding  this  deci- 
sion, to  make  such  reorganizations  of  districts  No.  5  and  6  as  th^y 
may  think  proper  and  just,  subject  to  an  appeal  to  the  Superin- 
tendent by  any  person  conceiving  himself  aggrieved- 

The  Inspectors  of  Common  Schools  of  the  town  of 
Oysterbay,  ex  parte. 

Trustees  are  not  the  judges  of  the  qualifications  required  for  teachers  in  their 

school  districts. 
Inspectors  should  aim  to  elevate  the  standard  of  education  by  a  rigid  examination 

of  teachers. 

This  was  an  application  by  the  inspectors  of  common  schools 
of  the  town  of  Oysterbay,  for  the  opinion  of  the  Supcrinten:lent 
as  to  their  duty  in  cases  in  which  teachers  not  properly  quahfied 
were  presented  to  them  by  the  trustees  of  school  districts  with  a 
request  that  the  necessary  certificates  might  be  given,  and  with 
the  assurance  on  the  part  of  the  trustees  that  they  and  the  in- 
habitants were  entirely  satisfied  with  the  teacher's  qualifications. 

By  John  A.  Dix,  February  11,  1837.  Neither  the  trus- 
tees nor  the  inhabitants  of  school  districts  are  the  judges  of 
the  qualifications  of  teachers.     The  law  has  confided  the  power 


326  CASES    DECIDED    BY    THE 

of  examining  teachers  to  the  inspectors,  and  the  object  was  to 
secure  the  employment  of  competent  persons.  If  the  trustees  or 
inhabitants  are  to  determine  what  their  districts  require,  and  in- 
spectors are  to  be  governed  by  their  opinions  and  wishes,  the  of- 
fice of  inspector  might  as  well  be  abolished.  With  such  a  prac- 
tice, it  is  clear  that  the  inspectors  could  have  no  influence  in  ele- 
vating the  standard  of  education.  A  qualified  teacher  need  only 
be  employed  three  months,  and  it  is  no  hardship  to  require  a 
good  one.  In  my  annual  report  to  the  legislature  for  the  year 
1835,  I  made  the  following  remarks,  which  I  commend  to  your 
consideration : 

"  One  of  the  most  responsible  and  delicate  trusts  to  be  executed 
under  the  common  school  system,  is  that  of  inspecting  teachers 
and  pronouncing  upon  their  qualifications.  This  duty  is  con- 
fided to  three  inspectors,  who  are  elected  in  each  town  annually, 
or  by  the  three  commissioners  of  common  schools,  who  are  also 
elected  annually  in  each  town,  and  who  are,  by  virtue  of  Iheir 
office,  authorized  to  examine  the  schools  and  teax;hers,  and  give 
the  latter  certificates  of  qualification.  If  the  inspection  of  teach- 
ers is  neghgently  conducted,  or  with  a  willingness  to  overlook 
deficienjcies  instead  of  insisting  rigidly  on  the  requirements  of  tlie 
law,  it  s  manifest  that  men  without  the  necessary  moral  charac- 
ter, learning  or  ability,  will  gain  a  foothold  in  the  common 
schools,  and  present  a  seiiaus  obstacle  to  the  improvements  of 
which  they  are  susceptible.  This  would  be  an  evil  of  the  great- 
est magnitude,  and  there  is  no  remedy  for  it  but  a  strict  inspec- 
tion of  the  candidates.  It  has  been  the  practice  in  some  instan- 
ces, for  inspectors  to  have  a  reference  to  the  particular  circum- 
stances of  the  case  in  giving  a  certificate.  Thus,  they  have 
sometimes  given  an  individual  a  certificate,  with  a  view  to  a 
summer  school,  in  which  the  children  taught  are  usually  smaller 
and  require  less  of  the  teacher,  when  the  certificate  would  have 
been  withheld,  if  it  was  asked  with  a  view  to  qualify  the  teacher 
for  a  winter  school.  But  it  is  obvious  that  such  a  distinction  is 
wholly  inadmissible.  A  certificate  must  be  unconditional  by  the 
terms  of  the  law  :  The  inspectors  must  be  satisfied  with  the  qua- 
lifications of  the  teacher,  "in  respect  to  moral  character,  learning 
and  ability  :"  And  the  certificate,  when  once  given,  is  an  abso- 
lute warrant  for  the  individual  to  teach  for  a  year,  and  to  receive 
the  public  money,  unless  revoked  before  the  expiration  of  the 
year,  in  which  case  it  ceases  to  be  operative  from  the  date  of  its 
revocation.  The  standard  of  qualification  for  teachers,  so  far  as 
granting  certificates  is  concerned,  is  of  necessity  arbitrary.  The 
law  does  not  prescribe  the  degree  of  learning  or  ability  which  a 
teacher  shall  possess,  but  virtually  refei"s  the  decision  of  this  im- 
portant rtiatter  to  the  inspectors.  "'    =     " 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  327 

^-  By  employing  a  qualified  teacher  three  months  in  each  year, 
every  district  is  entitled  to  a  distributive  share  of  the  common 
school  fund,  and  its  proportion  of  the  common  school  tax  paid 
by  the  town;  and  there  are  few  instances  in  which  the  amount 
of  the  contribution  from  these  sources  will  not  suffice  to  pay  him 
one  half  of  the  whole  amount  of  his  compensation  for  the  pre- 
scribed period.  During  the  remaining  nine  months,  the  districts 
are  at  liberty  to  employ  such  teachers  as  they  may  think  proper- 
All  the  law  exacts  is,  that  during  one-fourth  pait  of  the  year, 
each  district  which  participates  in  the  bounty  of  the  state,  shall 
have  a  teacher  with  whose  qualifications  the  inspectors  of  the 
town  are  satisfied.  The  requisition  is  by  no  means  onerous,  and 
as  the  inspectors  have  not,  neither  should  they  possess,  the  power 
of  relaxing  the  rule  with  reference  to  the  circumstances  of  any 
particular  case,  by  departing  from  the  standard  of  qualification 
which  thej  assume  as  their  guide  in  others." 

A.  B.,  a  trustee  of  school  district  No.  1  in  the  town 
of  Northeast,  ex  parte. 

All  the  trustees  of  a  district  should  be  present  in  assessing  a  tax;  but  if  a  tax  is 
assessed  by  two,  without  consulting  the  third,  the  collector  will  be  protected 
in  executing  the  warrant. 

If  the  annual  report  of  a  school  district  is  signed  by  two  trustees,  the  commis- 
sioners can  look  no  further,  and  the  district  must  receive  its  share  of  the  pub- 
lic money  if  the  report  is  otherwise  sufficient. 

The  following  question  was  submitted  for  the  opinion  of  the 
Superintendent  by  one  of  the  trustees  of  school  district  No.  1  in 
the  town  of  Northeast : 

"  Are  the  proceedings  of  two  trustees  legal,  when  the  third  is 
not  notified  or  consulted,  in  assessing  a  tax  and  making  an  an- 
nual report?" 

By  John  A.  Dix,  February  16,  1837.  All  the  trustees  of  a 
district  should  be  present  in  assessing  a  tax.  Sec.  27,  page  555, 
2  R.  S.  provides  that  "  whenever  any  power,  authority  or  duty 
is  confided  by  law  to  three  or  more  persons,  and  whenever  three 
or  more  persons  or  officers  are  authorized  or  required  by  law  to 
perform  any  act,  such  act  may  be  done,  and  such  power,  au- 
thority or  duty  may  be  exercised  and  performed  by  a  majority  of 
such  persons  or  officers,  upon  a  meeting  of  all  the  persons  or  of- 
ficers so  entrusted  or  empowered,  unless  special  provision  is  other- 
wise made."  The  rule  established  by  this  section  is  applicable 
to  officers  concerned  in  the  administration  of  the  common  school 
system,  excepting  where  a  different  provision  is  made ;  and  in 
relation  to  the  assessment  of  taxes  by  trustees  of  school  districts, 
no  such  provision  exists.  At  the  same  time,  if  a  tax  is  assessed 
by  two  trustees,  and  it  is  collected,  the  collector  \vill  be  protected. 


?t',. 


^ 
^  ^ 


328  CASES    DECIDED    BY    THE       "*  ^'t'^t 

even  if  he  should  enforce  the  collection  by  taking-  property  and 
selling  it.  If  the  warrant  annexed  to  a  rate  bill  or  tax  list  is 
under  the  hands  and  seals  of  a  majority  of  the  tnistees  (sec.  88^ 
page  484,  1  R.  S.)  it  is  sufficient  for  the  protection  of  the  eoilec- 
tor ;  though  in  an  action  of  trespass  against  the  trustees,  brought 
by  a  person  whose  property  had  been  taken  and  sold,  he  might 
perhaps  be  allowed  to  sliow  titat  two  of  the  trustees  only  united 
in  the  assessiTtent.* 

The  preparation  of  an  annual  report  of  a  school  district  is  a 
matter  in  which  all  the  trustees  ought  also  to  unite.  But  I  do 
not  perceive  how  any  advantage  could  be  taken  of  them  if  only 
two  were  present.  By  a  special  provision  of  the  act  relating  to 
comnwn  schools,  a  report  signed  and  certified  by  a  majority  of 
the  trustees  js  sufficient,  (sec.  92,  page  484,  1  R.  S.)  If  this 
provision  is  complied  with,^  and  the  report  is  in  other  respects  suf- 
ficient, the  commissioners  can  lock  no  further  and  the  district  must 
be  allowed  its  share  of  the  public  money.  The  commissioners 
would  clearly  in  such  a  case  act  in  strict  accordance  with  the  re- 
quirements of  the  law ;  and  if  a  portion  of  the  public  money 
were  awarded  to  a  district  in  which  a  report  was  made  out  by 
two  trustees  only,  without  any  consultation  with  the  third,  the 
defect  could  not,  it  appears  to  me,  be  made  the  ground  work  of 
any  judicial  proceeding  against  the  trustees  by  which  such  report 
was  rendered. 
►      ■ 

'  •       (anonymous.) 

A  teacher's  certitficate  cannot  be  dated  back. 

By  John  A.  Dix,  February  18, 1837.  A  certificate  of  quali- 
fication for  a  teacher  cannot  be  dated  back.  It  must  bear  date 
on  the  day  of  the  examination.  It  will  not  otherwise  conform 
to  truth. 

The  Trustees  of  school  district  No.  4  in  the  town  of 
Butternuts,  ex  parte. 

Tnwtees  of  school  districts  have  ceitain  corporate  powers  conferred  on  th^m  by 
the  statute;  but  their  jurisdiction  is  special  and  linnited,  and  in  the  exercise  of 
their  powers  they  must  confine  themselves  strictly  to  the  directions  of  the  sta- 
tute. 

Trustees  cannot  purchase  promissory  notes  given  by  a  teacher  to  third  persons 
and  set  them  off  in  payment  of  his  wages. 

This  was  an  application  from  the  trustees  of  school  district 
No.  4  in  the  town  of  Butternuts,  for  the  opinion  of  the  Superin- 

•  According  to  the  principle  of  the  decision  of  the  supreme  court  in  the  cas« 
of  McCoy  vs.  Curtice,  9  Wendell,  19,  the  presence  of  the  third  trustee  would 
be  presumed  until  the  contrary  wa«  shown. 


-de 


SUPERINTENDENT    OF    COMMON   SCHOOLS.  329 

tendent  as  to  their  right  to  purchase  promissory  notes  given  by 
a  teacher  to  certain  inhabitants  of  the  district,  to  whom  he  was 
indebted,  for  the  purpose  of  setting  off  such  notes  on  a  contract 
with  said  trustees,  in  payment  of  the  wages  due  him  for  teaching. 

By  John  A.  Dix,  February  24,  1837.  The  question  sub- 
mitted to  me  in  this  case  is,  whether  the  trustees  of  a  school  dis- 
trict may  purchase  and  hold  a  promissory  note  given  by  a  teacher 
to  a  third  person,  and  set  off  such  note  on  their  contract  with  the 
teacher  in  payment  of  his  wages? 

If  trustees  may  purchase  and  hold  such  a  note  in  their  official 
character,  then  it  would  seem  to  follow  that  they  may  transmit 
it,  as  the  property  of  the  district,  to  their  successors  in  office;  and 
'>that  they,  or  their  successors,  may  either  set  it  off  on  a  contract 
with  the  maker  or  maintain  an  action  on  it  against  him  for  the 
amount  due:  for  if  it  is  a  legal  demand  in  their  hands,  the 
right  of  enforcing  the  payment  of  it  against  the  party  from 
whom  it  is  due  would  be  necessarily  implied. 

The  question  to  be  determined,  therefore,  is,  whether  trustees 
may  purchase  and  hold  a  promissory  note  in  their  official  cha- 
racter; and  the  settlement  of  this  question  involves  a  general  in- 
quiry into  the  nature  and  extent  of  their  powers. 

The  revised  statute  relating  to  the  common  schools  confers  on 
the  trustees  of  school  districts  certain  specified  powers.  They 
are  authorized  to  perform  various  acts  concerning  the  school  dis- 
tricts for  which  they  are  appointed;  but  they  have  never  been 
considered  as  possessing  any  of  the  attributes  of  corporations,  ex- 
cepting such  as  the  statute  may  have  conferred  on  them  in  ex- 
press terms.  The  right  to  purchase,  hold  and  convey  real  and 
personal  estate  is  one  of  the  general  powers  of  a  corporation ;  and 
it  is  only  by  force  of  various  successive  enactments  that  this  power 
has  been  conferred,  in  special  cases,  on  the  trustees  of  school  dis- 
tricts. Thus,  the  Revised  Statutes,  vol.  1,  sec.  97,  page  485,  pro- 
vide that  "all  property  now  vested  in  the  trustees  of  any  school 
district,  for  the  use  of  schools  in  the  district,  or  which  may  be 
hereafter  transferred  to  such  trustees  for  that  purpose,  shall  be 
held  by  them  as  a  corporation."  By  force  of  this  provision  any 
property  which  may  become  vested  in  one  set  of  trustees  for  the 
use  of  their  district,  passes,  at  the  expiration  of  their  term  of  of- 
fice, to  their  successors  ;  and  either  may  doubtless  bring  an  ac- 
tion for  the  purpose  of  maintaining  the  quiet  and  peaceable  pos- 
session and  enjoyment  of  such  property ;  for  in  the  power  to  hold 
property  that  of  defending  it  against  unlawful  interferejice  is  ne- 
cessarily implied.*  But  so  far  they  are  only  authorized  to  hold 
as  a  corporation  property  vested  in,  or  to  be  transferred  to,  them ; 

^.  V'    -'•        *  See  a  case  leported  at  page  188,  »i 


** 


330  CASES    DECIDED   BY    THE 

and  there  is  no  other  provision  in  (he  statute  declaring  them  in 
express  terms  to  possess  corporate  powers.  A  declaration  that 
they  shall  be  a  corporation  for  one  purpose  would  seem  to  pre- 
clude the  idea  that  the  statute  designed  to  make  them  so  for  any 
other  purpose:  and  if,  in  other  cases,  corporate  powers  are  spe- 
cially conferred,  they  are  to  be  regarded  as  exceptions  to  the  ge- 
neral design  of  the  law. 

By  1  R.  S.  sub.  5,  sec.  75,  page  481,  trustees  of  school  dis- 
tricts are  authorized  to  "purchase  o%lease  a  site  for  the  district 
school-house,  as  designated  by  a  meeting  of  the  district,  and  to 
build,  hire  or  purchase,  keep  in  repair  and  fmnish  such  school- 
house  with  necessary  fuel  and  appendages,  out  of  the  funds  col- 
lected and  paid  to  them  for  such  purposes." 

The  4th  section  of  the  act  of  February  17,  1831,  concerning 
district  school-houses,  authorizes  the  inhabitants  of  any  school 
district  in  which  the  site  of  the  school-house  shall  have  been 
changed  as  provided  by  the  preceding  sections,  to  direct  the  sale 
of  the  former  lot  and  the  buildings  thereon;  and  a  deed  execut- 
ed by  the  trustees  in  pursuance  of  such  direction  is  declared  valid 
and  effectual  to  pass  all  the  estate  or  interest  of  such  district  in 
the  premises  intended  to  be  granted  thereby.  By  the  act  of  11th 
May,  1835,  the  trustees  of  a  school  district  are  authorized,  when- 
ever the  site  of  the  school-house  is  lawfully  changed,  to  sell  and 
convey  the  former  site,  &c.  These  acts  are  designed  to  enable 
school  districts  to  divest  themselves  of  the  title  to  their  real  estate, 
under  certain  circumstances,  it  having  been  uniformly  held  by 
the  Superintendent  that  there  was  no  competent  autiiority  exist- 
ing within  them  to  alien  and  convey  such  property  in  any  case. 
Thus,  by  a  train  of  successive  enactments,  the  trustees  of  school 
districts  have  been  authorized  to  exercise  one  of  the  general 
powers  of  corporate  bodies ;  to  hold,  "purchase  and  convey  real 
estate,  and  this  only  in  special  cases. 

In  relation  to  the  management  of  other  moneyed  transactions 
confided  to  trustees  of  school  districts  the  statute  is  equally  pre- 
cise in  its  provisions.  The  moneys  which  may  lawfully  come 
into  their  hands  for  the  use  of  their  districts  are  those  which  are 
raised  by  tax  upon  the  property  of  the  districts,  and  imposed  by 
vote  of  the  inhabitants  for  certain  objects  enumerated  in  the  sta- 
tute, and  those  which  are  received  from  the  commissioners  of 
common  schools  or  collected  from  the  persons  liable  therefor,  for 
the  payment  of  teachers'  wages.  If  the  moneys  apportioned  to 
a  district  are  not  paid  over  to  the  trustees,  they  are  authorized, 
by  sec.  90,  page  484,  1  R.  S.  to  bring  a  suit  for  the  recovery  of 
the  same,  with  interest,  against  the  commissioner  in  whose 
hands  they  shall  be.  If  the  sums  for  which  the  inhabitants  of 
the  district  are  Uable  for  tuition  are  not  paid  to  the  teacher,  the 


*' 


t' 


SUPERINTENDENT    OF    COMMON   SCHOOLS.  331 


trustees  are  authorized,  by  sub.  13,  sec,  75,  page  482,  1  R.  S.  to 
make  out  a  rate  bill  containing  the  name  of  eacli  person  so  lia- 
ble, and  the  amount  for  which  he  is  so  liable,  <fcc.  and  to  annex 
thereto  a  warrant  for  the  collection  thereof.  Whenever  a  tax  is 
voted,  the  trustees  are  required  to  make  out  a  tax  list  containing 
the  names  of  all  the  taxable  inhabitants,  (fcc.  and  to  annex  to  it  a 
warrant  for  its  collection.  If  the  sum  payable  by  any  person  is 
not  collected  within  a  certain  time,  the  trustees  may  renew  the 
warrant  as  to  such  delinquent;  or  if  he  is  a  non-resident  of  the 
district  at  the  time  of  making  out  the  tax  list  or  rate  bill,  or  at 
the  expiration  of  the  warrant,  and  no  goods  or  chattels  can  be 
found  therein  whereon  to  levy  the  same,  the  trustees  may  prose- 
cute for  the  amount  due  in  their  name  of  office. 

For  the  purpose  of  accomplishing  the  objects  in  view  of  these 
several  provisions,  the  statute  has  conferred  on  trustees  of  school 
districts  ample  powers;  and  if  those  officers  transcend  the  just 
bounds  of  their  authority,  they  will  have  no  right  to  complain 
if  they  lose  the  legal  protection  which  would  otherwise  be  ac- 
corded to  them  in  the  performance  of  their  duties. 

The  power  of  bringing  suits  has  also  been  conferred  on  them 
in  cases  other  than  those  above  enumerated,  and  in  almost  every 
instance  authority  is  specially  given  to  sue  " in  (heir  name  of 
office." 

In  a  case  which  was  decided  in  Massachusetts,  13  Mass.  Rep. 
193,  it  was  held  that  the  inhabitants  of  a  school  district  had  suf- 
ficient corporate  powers  to  maintain  an  action  on  a  contract  to 
build  a  school-house,  and  to  make  a  lease  of  land  to  them. 
The  court  said  that  school  districts  were  to  be  considered  "  as 
qua  corporations,  with  limited  powers,  co-extensive  with  the  du- 
ties imposed  upon  them  by  statute  or  usage,  but  restrained  from 
a  general  use  of  the  authority  which  belongs  to  those  metaphy- 
sical persons  at  common  law.  The  same  may  be  said  of  all  the 
numerous  corporations  which  have  been  from  time  to  time  cre- 
ated by  various  acts  of  the  legislature,  all  of  them  enjoying  the 
power  which  is  expressly  bestowed  upon  them,  and  perhaps  in 
all  instances  where  the  act  is  silent,  possessing  by  necessary  im- 
plication the  authoiity  which  is  requisite  to  execute  the  purposes 
of  their  creation." 

The  laws  of  Massachusetts,  under  which  this  decision  was 
made,  relating  to  the  division  of  towns  into  school  districts,  and 
conferring  certain  powers  on  the  inhabitants,  were  extremely 
general  in  their  provisions,  and  the  decision  was  not  pronounced 
until  the  court  had  for  some  time  held  the  case  under  advise- 
ment, and  several  times  consulted  in  relation  to  it,  in  conse- 
quence of  doubts  which  some  of  them  entertained.  The  Re- 
vised Statutes  of  Massachusetts,  sec.  57,  page  225,  provide  that 


332      ff     JiMi'l»'CAeE8  decided  by  the 

"  every  'school  district  shall  be  a  body  corporate,  so  far  as  to  pro-* 
secute  and  defend  in  all  actions  relating  to  the  property  of  the 
district ;"  thus  removing  all  the  doubt  which  existed  as  to  the 
extent  of  the  powers  of  school  districts  under  pre-existing  laws 
in  respect  to  maintaining  actions  at  law. 

The  principles  settled  by  the  case  in  Massachusetts  are  per- 
haps in  no  degree  inconsistent  with  the  conclusion  to  which  the 
foregoing  arguments  tend,  with  respect  to  scliool  districts  in 
this  state.  In  Massachusetts  many  of  the  essential  powers  of 
school  districts  were  necessarily  derived  by  implication,  from  a 
consideration  of  the  purposes  for  which  they  were  created.  In 
this  state,  on  the  other  hand,  the  statute  has  undertaken  to  spe- 
cify with  precision  the  powers  to  be  exercised  by  the  persons 
charged  with  administering  the  common  school  system  and  con- 
tinuing it  in  existence.  Although  the  rule  of  construction  adopt- 
ed by  the  court  in  Massachusetts  may  be  equally  true  in  both 
cases,  the  necessity  of  resorting  to  it  in  order  to  justify  the  exer- 
cise of  implied  powers,  can  rarely  occur  in  this  state,  for  there 
is  scarcely  any  object  which  the  statute  has  not  provided  the 
means  of  accomplishing.  The  jurisdiction  of  the  officere  en- 
gaged in  the  management  of  t  he  affairs  of  school  districts  is  spe- 
cial and  limited ;  and  in  the  exercise  of  their  powers  they  must 
confine  themselves  strictly  to  the  directions  of  the  statute,  al- 
though the  question  may  sometimes  arise  whether  tlie  exercise 
of  a  power  not  expressly  granted  by  law  is  not  indispensable  to 
the  accomplishment  of  some  authorized  object. 

There  is  no  provision  in  the  statute  by  which  trustees  of  school 
districts  may  purchase  or  receive  promissory  notes.  They  can- 
not lawfully  purchase  them,  for  the  moneys  which  come  into 
their  hands  are  appropriated  to  specific  objects,  and  they  have 
no  right  to  use  those  moneys,  even  temporarily,  for  any  other 
purpose.  They  cannot  receive  and  hold  promissory  notes  for 
moneys  due  the  district,  for  the  law  requires  them  to  collect  in 
specified  modes  the  legal  demands  of  their  districts  against  indi- 
viduals. To  take  a  due  bill  or  note  of  hand  from  an  individual 
for  money  due  to  the  district,  is  not  only  an  unauthorized,  but  an 
unnecessary,  step,  and  trustees  can  have  no  possible  justification 
in  thus  transcending  their  powers.  They  have  other  means  of 
enforcing  the  legal  rights  of  the  district,  and  they  should  not 
resort  to  practices  for  which  the  law  furnishes  no  authority.  The 
wages  of  teachers  must  be  paid  in  the  mode  prescribed  by  law. 
If  trustees  purchase  demands  against  them,  it  is  in  their  indi- 
vidual capacity,  and  those  demands  will  not  be  allowed  to  enter 
into  their  official  transactions,  or  to  be  set  oflf  against  the  de- 
mands of  the  teacher  upon  the  district.  Such  a  right  is  essen- 
tial to  no  object  for  which  school  districts  were  created,  and  if 


r   * 


SUPERINTENDENT   OF   COMMON   SCHOOLS.  333 

the  power  of  trafficking'  in  personal  securities  existed,  I  should 
apprehend  that  serious  inconveniences  and  abuse  would  grow 
out  of  it. 

In  the  case  of  Brewster  vs.  Cohveli  and  others,  13  Wendell. 
28,  the  supreme  court  of  this  state  decided  that  the  trustees  of  a 
school  district  might  receive  for  money  due  to  them  the  note  of  a 
third  person.  This  was  a  case,  however,  in  w^hich  a  contract  had 
been  made  by  the  trustees  for  fuel,  and  in  which  they  were  al- 
lowed to  set  off  in  a  suit  brought  by  the  person  who  had  fur- 
nished it,  a  due  bill  given  by  him  to  a  third  person,  and  trans- 
ferred to  them.  From  the  opinion  expressed  by  the  court  in 
the  cases  of  Hubbard  vs.  Randall  and  others,  1  Cowen,  262, 
note,  and  Silver  vs.  Ciimmings  and  others,  7  Wendell,  181, 
it  would  seem  that  trustees  are  personally  liable  on  such  con- 
tracts, and  cannot  bind  their  successors  in  office.  In  both  the 
cases  last  referred  to,  the  opinion  of  the  court  had  reference  to 
contracts  for  building  school-houses ;  but  the  reasoning  of  the 
court  in  the  case  of  Silver  vs.  Cumraings,  is  equally  applicable 
to  contracts  for  fuel.  Between  such  contracts,  and  those  which 
are  made  with  teachers  for  the  payment  of  their  wages,  a  dis- 
tinction was  taken,  for  reasons  which  were  fully  assigned  ;  and 
the  court  decided  that  with  respect  to  the  latter,  successors  were 
liable  under  contracts  made  by  their  predecessors  in  office.  The 
decision  of  the  court  in  the  case  of  Brewster  vs.  Colvvell  and 
others,  does  not,  therefore,  necessarily  conffict  with  the  con- 
struction Avhich  I  have  given  to  the  statute ;  for  if  the  trustees 
in  that  case  were  personally  liable  on  their  contract  with  Brew- 
ster, the  due  bill  may  have  been  regarded  as  having  been  pur- 
chased and  held  by  them  as  individuals.  If  this  supposition  be 
true,  it  was  not  set  off  by  them  in  their  official  character,  but  as 
a  personal  demand  in  extinguishment  of  an  individual  liab'dity. 
The  opinion  of  the  court  in  this  case  was  very  brief,  and  was 
accompanied  with  no  exposition  of  the  grounds  on  which  it  w-as 
founded ;  but  from  the  tenor  of  its  decisions  in  other  cases  in  re- 
spect to  the  powers  of  school  district  officers,  I  entertain  no  doubt 
as  to  the  principle  on  which  the  case  was  decided. 

Jeremiah  Coons,  a  trustee  of  school  district  No.  18  in 
the  town  of  Broome,  against  the  inhabitants  of 
said  district. 

If  a  tax  is  voted  for  a  particular  object,  and  the  trustees  expend  a  greater  amount, 
they  are  without  remedy  if  the  inhabitants  refuse  to  vote  an  additional  sum  to 

i-eimburse  them. 

The  facts  of  the  case  are  stated  in  the  Superintendent's  deci- 
sion. -•'       - 1- 


y 


%:•  •'  m  ^ 


334  •"  •♦     CASES    DECIDED   BY    THE  i? 

By  John  A.  Dix,  February  28,  1837.  This  is  an  appeal 
by  Jeremiah  Coons,  a  trustee  of  school  district  No.  18  in  tlie 
town  of  Broome,  from  a  decision  of  the  inhabitants  of  said  dis- 
trict at  a  special  meeting  called  for  the  purpose  of  raising  money 
to  pay  for  repairing  the  school-house  and  for  other  work  in  put- 
ting up  a  stove.  The  sum  claimed  by  said  trustee  to  be  equita- 
bly due  from  the  district  to  him  is  $2.20,  which  the  inhabitants 
refused  to  raise  by  tax.  It  appears  that  a  tax  of  $11  was  voted, 
and  has  been  collected,  to  buy  a  stove,  and  that  the  trustees  ex- 
pended in  addition  to  that  amount  ^5.20  for  stove  pipe  and 
work.  The  sum  of  .$3  has  been  raised  by  subscription,  leav- 
ing the  above  mentioned  balance  of  ^2.20. 

The  Superintendent  of  Common  Schools  cannot  interfere  in 
this  case.  If  the  inhabitants  of  the  district  had  directed  the 
trustees  to  purchase  and  put  up  a  stove,  without  specifying  the 
amount  to  be  expended,  or  voting  any  tax  for  the  purpose,  he 
would  authorize  the  sums  reasonably  expended  by  them  in  exe- 
cuting that  direction,  to  be  raised  on  the  taxable  property  of  the 
district,  in  case  of  a  refusal  on  the  part  of  the  inhabitants  to 
provide  for  a  reimbursement  of  their  expenditures.  But  as  the 
inhabitants,  by  voting  a  tax  of  $11,  have  in  effect  limited 
the  amount  of  the  expenditure  in  contemplation  to  that  sum,  the 
trustees  were  wholly  unauthorized  to  go  beyond  it,  and  they 
must  abide  the  consequences.  The  district  may  at  any  time 
vote  to  be  raised  by  tax  the  additional  sum  required  ;  but  if  they 
.  refuse,  the  trustees  having  acted  without  authority,  have  no  re- 
medy. 

It  is  accordingly  ordered,  that  the  appeal  of  Jeremiah  Coons 
be,  and  it  is  hereby  dismissed. 

The  Inspectors  of  Common  Schools  of  the  town  of 
Edmeston,  ex  parte. 

Inspectors  of  common  schools  may  give  notice  that  they  will  meet  at  certain  times 
and  places  for  the  inspection  of  teachers  ;  but  this  does  not  exonerate  them 
from  the  duty  of  meeting  at  intermediate  times  when  there  attendance  is  re- 
quired. 

This  was  an  application  for  the  direction  of  the  Superinten- 
dent by  the  inspectors  of  common  schools  of  the  town  of  Ed- 
meston, as  to  their  duty  with  respect  to  meeting  for  the  exami- 
nation of  teachers. 

By  John  A.  Dix,  March  4,  1637.  There  is  no  established 
rule  as  to  the  time  when  inspectors  of  common  schools  are  to 
examine  teachers.  The  inspectors  may  give  a  general  notice 
that  they  will  be  present  at  a  certain  place  on  a  certain  day, 
and  will  then  and  there  examine  all  such  persons  as  may  pre- 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  335 

sent  themselves  as  candidates  for  teaching  common  schools. 
But  this  will  not  exonerate  them  from  the  obligation  of  attend- 
ing at  other  times  and  places,  in  case  of  urgent  necessity,  on 
application  to  them  from  the  trustees  of  a  school  district  or  a 
teacher.  They  may,  if  they  choose,  give  public  notice  that  they 
will  meet  at  some  central  place  in  the  town,  say,  on  the  first 
Monday  in  January  and  July,  and  examine  all  persons,  who 
intend  to  be  candidates  for  teaching  ;  and  in  case  of  applications 
requiring  an  earlier  action,  they  may  irreet  on  the  first  Monday 
of  the  intermediate  months  of  April  and  October.  1  suggest 
this  as  a  convenient  arrangement,  and  one  which  the  inspectors 
may  with  propriety  make.  If  such  a  usage  were  to  become  es- 
tablished in  a  town,  so  as  to  be  a  matter  of  general  notoriety, 
the  cases  would  be  extremely  rare  which  would  not  be  disposed 
of  at  the  four  stated  meetings  of  the  inspectors. 

The  Trustees  of  school  district  No. in  the  town 

of  Willsborough,  ex  parte. 

Collectors  of  school  districts  may,  in  certain  cases,  go^  beyond  the  boundaries 
of  the  districts,  for  which  they  were  appointed,  to  execute  warrants  for  the 
collection  of  taxes  and  rate  bills 

The  following  question  was  presented  for.  the  opinion  of  the 

Superintendent  by  the  trustees  of  school  district  No. in  the 

town  of  Willsborough. 

The  collector  of  our  town  has  taxes  to  collect  against  A.  B. 
and  C  of  other  towns  of  said  county.  He  is  authorized  to  go 
into  said  towns  and  levy  and  sell  property  in  their  possession  to 
satisfy  such  taxes.  Does  not  the  school  act,  by  the  amendment 
of  April  21,  1831,  give  the  same  authority  to  collectors  of  school 
district? 

By  John  A.  Dix,  March  6,  1837.  The  general  rule  ap- 
plicable to  all  officers  is,  that  they  canriot  exercise  jurisdiction  be- 
yond the  limits  of  the  district  or  territory  for  which  they  are  ap- 
pointed. The  exceptions  to  the  rule  are  cases  in  which  the  legis- 
lature, by  special  enactment,  may  have  extended  the  jurisdiction 
of  particular  officers,  or  classes  of  officers,  beyond  those  limits. 
The  question  presented  by  you  is,  whether  the  act  of  April  21, 
1831,  extends  to  collectors  of  school  districts,  the  right  of  going 
beyond  the  boundaries  of  their  districts  \v\  the  purpose  of  execut- 
ing a  warrant  for  the  collection  of  a  tax  for  erecting  or  repairing 
a  school-house?  This  act  provides  that  "the  uaraiu!  annexed 
to  any  tax  list  for  the  collection  of  a  disf.ru.tr tgfi^^^l^^eiecting  or 
repairing  any  school-house,  shall  conmicind  (he  coiU  cfor,  in  case 
any  person  named  in  such  list  shall  nctfpay  the  ^suni  therein  set 
opposite  to  bis  name  on  demand,  to  levy  \hc  iaine  cf  iiib  goods 


m 


236  .  CASES    DECIDED    BY   THE    iia'-mftt     '     *  -»^ 

and  chattels,  in  the  same  manner  as  on  warrants  issued  by  the 
board  of  supervisors  to  the  collectors  of  towns."  The  act  of  April 
26,  1832,  provides  that  all  taxes  directed  to  be  raised  by  the  act 
relating  to  common  schools,  (title  2,  of  chapter  15,  of  part  first 
of  the  Revised  Statutes,)  shall  be  collected  in  the  manner  pre- 
scribed by  the  act  of  1831  above  quoted.  Whether,  therefore, 
a  tax  be  voted  to  build  or  repair  a  school-house,  purchase  fuel,  ^'"i^ 

it  ir.^^ 


or  for  any  other  authorized  object,  the  manner  of  collecting  .«  •-  -^t^  ^ 
the  same?     The  act  of  May  11,   1835,  sec.  3,  provides  that'|P.*j[ 
"the  warrant  issued  by  the  trustees  of  school  districts  for  the      ^" 
collection  of  rate  bills  shall  have  the  like  force  and  effect  as  war*%.  *,  ^ 
rants  issued  by  the  boards  of  supervisors  to  the  collectors  of  taxes 
in  towns;  and  the  district  collectors  are  hereby  authorized  to  col- 
lect the  amount  due  from  any  person  or  persons  in  their  lespec-        *^ 
tive  districts,  in  the  same  marmer  that  the  collectors  are  autho- 
rized to  collect  town  and  county  charges." 

The  effect  of  these  several  amendments  of  the  Revised  Sta- 
tutes is  to  authorize  collectors  of  school  districts  to  execute  war- 
rants for  the  collection  of  all  taxes  and  rate  bills,  m  the  same 
manner  as  warrants  issued  by  boards  of  supervisors  to  the  col- 
lectors of  towns. 

The  first  question  which  arises  under  these  amendments,  al- 
though it  is  not  distinctly  presented  by  you,  is,  whether  a  collec- 
tor of  a  school  district  must  levy  the  amount  due  from  any  in- 
dividual by  distress  and  sale  of  the  goods  and  chattels  of  such 
individual,  or  whether  he  may  take  "  any  goods  and  chattels  in 
his  possession,"  as  collectors  of  towns  may  do,  under  the  provi- 
sions of  sec.  2,  page  397,  1  R.  S.?  With  regard  to  warrants  issu- 
ed for  the  collection  of  rate  bills,  there  can  be  no  doubt,  as  the 
act  of  May  11,  1835,  expressly  declares,  that  they  shall  have 
the  hke  force  and  effect  as  warrants  issued  by  the  board  of  su- 
pervisors, &c.  The  act  of  April  21,  1831,  which,  with  the 
amendment  of  1832,  relates  to  warrants  issued  for  the  collection 
of  taxes,  authorizes  collectors  of  school  districts,  in  case  any  per- 
son named  in  their  warrants  refuses  to  pay  the  amount  set  oppo- 
site to  his  name,  "to  levy  the  same  of  his  goods  and  chattels  in 
the  same  manner  as  on  warrants  issued  by  boards  of  supervi- 
sors," &c.  At  first  glance,  this  provision  would  seem  to  restrict 
the  collector  in  his  levy,  to  the  goods  and  chattels  of  the  person 
named  in  the  tax  list,  and  not  to  authorize  him  to  take  "  any 
goods  or  chattels"  in  the  possession  of  such  person.  But  b}'  re- 
ferring to  sub.  .5,  of  sec.  37,  page  396,  1  R.  S.  it  will  be  perceived 
that  the  warrants  issued  by  boards  of  supervisors  merely  autho- 
rize "  the  collector,  in  case  any  person  named  in  the  assessment 
roll  shall  refuse  or  neglect  to  pay  his  tax,  to  levy  the  same  by 
distre.ss  and  sale  of  the  goods  artd  chattels  of  such  person,"    The 

■3^ 


SUPERINTENDENT    OF   COMMON   SCHOOLS,  337 

direction,  therefore,  would  be  the  same  in  both  cases.  But  under 
the  provision  of  the  act  of  April  21,  1831,  which  directs  the  levy 
to  be  made  "  in  the  same  manner"  as  warrants  issued  by  boards 
of  supervisors  to  town  collectors,  it  is  conceived  that  the  autho- 
rity given  to  the  latter  to  taise  ''  any  goods  and  chattels  in  pos- 
session" of  any  person  who  ought  to  pay  the  lax,  extends  also  to 
collectors  of  school  districts.  Tlte  article  of  which  this  provi- 
sion is  a  part,  professes  to  treat  "of  the  manner  in  which  taxes 
are  to  be  collected,  and  the  duties  of  the  collector ;"  and  from 
the  similarity  of  the  language  adopted  in  the  two  cases,  it  is  fair 
to  infer  that  the  intention  was  to  make  the  provisions  of  this  ar- 
ticle applicable  to  both.* 

The  first  question  which  arises  under  this  construction  of  the 
statute,  as  amended,  being  disposed  of,  we  come  now  to  the  in- 
quiry presented  by  you,  whether  a  collector  of  a  school  digtri<d; 
can  go  beyond  the  boundaries  of  his  district  to  execute  a  war- 
rant? 

Sec.  5,  page  398,  1  R.  S,  provides  that  tow«  coilectors  may 
levy  and  collect  taxes  in  other  wards  or  towris,  in  the  same  coun- 
ty, in  two  cases  : 

1st.  When  any  person  assessed  to  pay  a  tax  shall  have  remov- 
ed after  the  assessment,  and  before  the  tax  ought  by  law  to  have 
been  collected,  out  of  the  towa  or  ward  in  which  such  tax  has 
been  assessed :  and, 

2d.  When  any  person  shall  neglect  or  refuse  to  pay  a  tax  as- 
sessed on  any  estate  situated  out  of  the  ward  or  town  in  which 
lie  sliall  reside,  and  within  the  county. 

The  last  case  cannot  occur  in  the  assessment  of  taxes  for 
school  district  purposes,  as  such  taxes  are  to  be  apportioned  "  oiri 
all  the  taxable  inhabitants  within  the  district,  according  to  the 
valuations  of  the  taxable  property  which  shall  be  owned  or  pos- 
sessed by  them,  at  the  ti»ne  of  making  out  the  list  within  the 
district,"  or  "  partly  m  such  district  and  partly  in  any  adjoining 
district."  No  person,  therefore,  can  be  assessed  for  real  proper- 
ty excepting  in  the  district  in  which  it  is  situated ;  and  if  he  re- 
sides in  a  different  district,  he  is,  in  certain  cases,  by  the  provi- 
sions of  sec.  77  and  78,  page  482,  1  R.  S.  to  be  deemed  a  taxa- 
ble inhabitant  of  the  district  in  which  the  property  is  situated. — 
Where  school  districts  lie  partly  in  two  or  more  towns,  the  col- 
lector may  levy  on  property  in  either  town^  and  even  in  a  differ- 
ent county,  if  it  be  within  his  district.  But  this  is  within  the 
general  rule,  and  of  course  not  susceptible  of  the  application  of 

•  See  the  case  of  the  trustees  of  school  district  No.  4  in  the  town  of  Batter> 
nuts,  page  14a,  and  decision  of  supreme  court,  note,  page  144. 

22 


338  CASES    DECIDED    BY    THE 

the  pr'iDciples  which  govern  either  of  the  above  mentionecrexcep- 
tions.* 

In  the  first  case  above  stated,  in  whicli  town  collectors  may  » 
levy  and  colled  taxes  out  of  their  own  towns  and  wards,  ar»d 
within  the  same  county,  it  appears  to  me  that  the  same  autho- 
rity is  conferred  on  collectors  of  school  districts,  by  force  of  the 
amendments  of  the  statute  above  recited.  With  regard  to  rate 
bills,  if  it  be  not  so,  the  warrant  would  not  have  the  like  force 
and  effect  as  warrants  issued  by  boards  of  supervisors  to  town 
collectors. 

There  is  some  difference  in  the  phraseology  of  the  acts  of  1831 
and  1835.  The  latter  gives  to  warrants  for  the  collection  of  rate 
bills  "  the  like  force  and  effect"  as  warrants  issued  by  boards  of 
supervisors.  The  former  gives  authority  to  collect  of  "any  per- 
son named  in"  a  tax  list,  in  the  same  manner  as  on  warrants 
issued  by  boards  of  supervisors;  whereas,  by  the  last  clause  of 
sec.  3,  of  the  act  of  1835,  district  collectors  are  authorized  to  col- 
lect '-the  arrwunt  due  from  any  person  or  persons  in  their  re- 
spective districts  in  the  same  manner"  as  town  collectors.  I  do 
not  consider  these  differences,  in  the  language  of  the  acts  refer- 
red to,  as  intended  to  make  a  distinction  in  the  two  classes  of 
cases  to  which  they  relate.  The  object  of  the  amendments  was 
the  same ;  to  give  a  more  extensive  remedy  in  cc^ecting  moneys 
for  common  school  pui  poses.  The  act  of  1831  applied  to  taxes 
for  erecting  or  repairing  school-houses.  The  act  of  1832  design- 
ed to  place  all  other  taxes  ir>  school  districts  on  the  same  footing. 
But  a  doubt  having  arisen  whether  rate  bills  for  teachers'  wages 
were  embraced  by  the  act  of  1832,  the  act  of  1835  was  pa^ed 
for  the  purpose  of  removing  it. 

After  all,  it  will  be  perceived  that  there  is  but  a  single  class  of 
cases,  urwJer  this  construction  of  the  acts  referred  to,  in  which  the 
collector  of  a  school  district  can  go  beyond  the  boundaries  of  his 
district  to  enforce  the  collection  of  a  tax;  that  is,  where  an  inha- 
bitant is  included  in  a  tax  list  or  rate  bill,  and  removes  out  of  the 
district,  after  the  assessment  and  before  the  tax  or  tuition  bill 

•  In  the  opinion  of  the  Superintendent,  in  the  case  of  the  trustees  of  school 
district  No.  1  in  the  town  of  Cotiewango,  page  78,  it  would  seem  that  collectors 
might  go  beyond  the  boundaries  of  their  districts  to  execute  warrants  against  the 
class  of  non-residents  embraced  in  sections  77  and  78,  though  not  for  the  coliec- 
fton  of  rate  bills  ;  and  by  the  decision  of  the  supreme  court,  in  the  case  of  tVard 
vs.  Aylcsworfh,  9  Wendell,  2S1,  it  was  settled  that  a  collector  might,  where  a 
farm  was  partly  within  an  adjoining  district,  go  on  to  that  part  of  it  and  take  pro- 
perty to  satisfy  a  tax,  the  whole  farm  bern^  considered,  for  that  purpose,  with- 
in the  district  of  the  collector.  In  this  case  the  court  held,  that  the  collector 
was  limited  in  his  functions  to  the  bounds  of  his  district.  But  the  case  occurred 
and  was  tried  beibre  the  amendments  of  1831  and  I8SS  to  the  school  act»  with 
regard  to  the  coltectioa  of  taxes,  were  in  force. 


A 


SUPERINTENDENT    OF   COMMON   SCHOOLS.  339 

ought  by  law  to  have  been  collected.  Whether  the  warrant  be  is- 
sued for  the  collection  of  a  tax  list  or  rate  bill,  is  of  no  consequence. 
If,  after  the  tax  list  or  rate  bill  is  made  out,  a  person  removes  in- 
to another  town  in  the  same  county,  the  collector  may  follow 
him  and  levy  the  amount  due  on  any  goods  or  chattel  in  his 
possession. 

There  are  other  cases  in  which  a  collector  cannot  go  out  of 
his  district  to  collect  a  rate  bill : 

1st.  Where  a  person,  liable  to  be  included  in  a  rate  bill,  re- 
moves from  the  district  before  it  is  made  out ;  and 

2.  Where  a  person,  liable  to  be  included  in  such  rate  bill,  has 
not  removed  from  the  district  after  the  rate  bill  is  made  out,  and 
does  not  reside  therein  at  the  expiration  of  the  warrant,  and  no 
goods  or  chattels  can  be  found  in  the  district  whereon  a  levy  can 
be  made. 

Neither  of  these  cases  comes  within  the  scope  of  the  amend- 
ments to  the  Revised  Statutes,  prescribing  the  duties  of  col- 
lectors, whatever  may  have  been  the  intention  of  the  framers 
of  those  amendments;  for  in  neither  case  is  there  a  removal 
after  making  out  the  rate  bill,  and  before  it  ought  by  law  to 
have  been  collected  ;  nor  is  there  in  either  an  assessment  of  pro- 
perty situated  out  of  the  town  or  ward  in  which  the  owner  re- 
sides, rate  bills  not  being  made  out  with  any  regard  to  taxable 
property,  but  according  to  the  number  of  children  sent  to  school, 
and  the  period  of  attendance. 

In  these  cases,  therefore,  the  only  remedy  is  that  provided  by 
section  89,  page  484,  1  R.  S.  which  authorizes  trustees  of  school 
districts  to  sue  for  and  recover  the  amount  due  in  their  name  of 
office. 

The  Trustees  of  school  district  No.  5  in  the  town  of 
Oswegatchie,  ex  parte. 

if  the  commissioners  of  common  schools  certify  that  si  larger  sum  than  $400  is 
necessary  to  build  a  school-house,  the  excess  cannot  be  raised  by  tax  without 
a  vote  of  the  district. 

If,  after  $400  has  been  expended  in  erecting  a  school -house,  and  an  additional 
sum  has  been  raised  on  the  certificate  of  the  commissioners,  a  further  sum  is 
required,  such  further  sum  may  be  voted,  if  certified  by  the  commissioneis  io 
be  necessary. 

In  February,  1836,  a  tax  of  $400  was  voted  in  school  district 
No.  5  in  the  town  of  Oswegatchie,  to  build  a  school-house.  The 
whole  amount  was  raised  and  expended,  and  was  found  insuffi- 
cient to  finish  the  house.  An  application  was  then  made  to  the 
commissioners  of  common  schools  for  a  certificate,  stating  that 
1  their  opinion  a  larger  sum  was  necessary.  The  commission- 
gj^g  gave  a  certificate  that  $200  more  was  nficessary,  which  sum 


*JTW^^      "-J^     *      v         •  •    ..i/f 


V  ' 


340  CASES    I^ECIDED   BY   THB     .^     .   ■ 

i 

was  also  raised  and  expended.  A  further  sum  being  required, 
another  application  was  made  to  the  commissioners,  who  ex- 
pressed a  willingness  to  give  the  required  certificate,  but  doubted 
their  authority  to  certify  a  second  time.  In  the  mean  time  the  ^ 
trustees  had  gone  on  by  a  vote  of  the  inhabitants,  given  after  six 
hundred  doUai-s  had  been  expended,  and  finished  the  house, 
having  borrowed  money  on  their  own  responsibility  for  the  pur- 
pose. 

Under  these  circumstances  an  application  was  made  to  the 
Superintendent  for  his  opinion  as  to  the  right  of  the  commission- 
ers to  certify  a  further  sum,  and  as  to  the  right  of  trustees  to 
levy  such  additional  sum  without  a  vote  of  the  district.  ^^ 

By  John  A.  Dix,  March  A,  1837.  Section  64,  page  479,  *W 
1  R.  S.  which  forbids  a  greater  sum  than  $400  to  be  voted  for 
building  a  school-house,  unless  the  commissioners  of  common 
schools  of  the  town  certify  in  writing  that  a  larger  sum  ought 
to  be  raised,  does  not,  in  my  opinion,  authorize  such  additional 
sum  to  bp  raised  without  a  vote  of  the  district.  Though  the 
latter  part  of  the  section  may  at  first  glance  seem  to  be  impe- 
rative as  to  raising  "a  sum  not  exceeding  the  sum"  specified  by 
the  commissioners,  yet  when  taken  in  connection  with  the 
first  part  of  the  section,  I  think  the  manifest  intention  was,  that  # 
the  additional  sum  should  be  voted  by  ihe  district,  and  that  the 
certificate  of  the  comnnssioners  was  designed  only  to  enlarge  the 
powers  of  the  inhabitants  as  to  voting  a  tax  for  building  a  school- 
hcHise,  and  not  to  give  the  commissioners  power,  independently 
of  the  wishes  of  the  district,  to  cause  a  larger  sum  than  $400  to 
be  levied  on  its  taxable  property. 

Under  this  view  of  the  intention  of  the  statute,  I  see  no  rea- 
son why  the  commissioners  may  not  again  certify  that  a  larger 
sum  than  the  amount  already  collected  ought  to  be  raised.  On 
this  certificate  the  inhabitants  of  the  district  may,  at  a  special 
meeting,  called  for  the  purpose,  vote  the  additional  sum  so  speci- 
fied. If  the  trustees  of  the  district  have  gone  on,  by  the  direction 
of  the  inhabitants  who  were  convened  for  the  purpose,  and  iii- 
curred  pecuniary  responsibilities,  they  should  be  protected ;  and 
in  case  the  inhabitants  refuse,  on  the  certificate  of  the  commis- 
sioners, to  vote  a  sum  suflPicient  to  reimburse  the  trustees  for  the 
amount  reasonably  expended  in  pursuance  of  such  direction,  I  ^^ 
should,  on  application  to  me,  take  the  measures  necessary  to  saveT;^* 
them  harmless.  *^ 


V* 


SUPERINTENDENT    OP   COMsiON   SCHOOLS.  -^1 

Horace  Gay  and  Hester  L.  Stevens,  against  the  trus- 
tees of  school  district  No.  3  in  the  town  of  Gates. 

If  a  man  has  been  assessed  on  the  last  assessment  roll  of  the  town  for  a  greater 
number  of  acres  than  his  farm  contains,  he  may  claim  a  reduction  before  the 
trustees  of  a  school  district,  when  a  tax  is  assessed  for  common  school  pur- 
poses; but  if  he  neglects  to  make  such  claim,  he  wiH  not  be  relieved  on  an 
appeal  to  the  Superintendent. 

This  was  a  case  in  which  the  appellants  complained  that 
they  had  been  unjustly  taxed  for  12yVo  acres  of  land,  the  farm 
for  which  they  were  taxed  being  so  much  less  than  the  quantity 
for  which  it  was  assessed  in  the  last  assessment  roll  of  the  town. 
■0  By  John  A.  Dix,  March  14,  1837.  The  Superintendent  of 
Common  Schools  having  examined  the  case  submitted  by  Ho- 
race Gay  and  Hester  L.  Stevens  of  the  one  part,  and  the  trus- 
tees of  school  district  No.  3  in  the  town  of  Gates  on  the  other 
part,  in  the  matter  of  the  assessment  of  a  tax  by  the  latter,  is  of 
opinion  that  the  sum  of  $4.01,  which  the  appellants  state  to 
have  been  assessed  on  lot  No.  167,  on  account  of  12 ^Yo  acres  of 
land  more  than  the  lot  contained,  cannot  be  remitted,  inasmuch 
as  the  assessment  was  made  agreeably  to  the  last  assessment  roll 
of  the  town  of  Gates.  A  reduction  of  the  tax  on  account  of  the 
excess  of  land  assessed  over  and  above  the  number  of  acres  actu- 
ally contained  in  the  lot,  might  have  been  claimed;  but  the 
Superintendent  cannot  interpose  when  the  parties  have  ne- 
glected to  resoit  to  the  remedy  provided  by  the  statute.  If  the 
reduction  had  been  claimed  before  the  trustees,  and  they  had  re- 
fused to  correct  the  error,  the  interposition  of  the  Superintendent 
might  with  propriety  have  been  asked.  It  is  not  alleged  that  the 
proper  application  was  made  to  the  trustees  for  a  reduction  of  the 
tax;  and  it  is  therefore  presumed  tliat  no  such  claim  was  pre- 
ferred. 

The  Trustees  of  school  district  No. in  the  town 

of  Fallsburgh,  ex  parte. 

Trustees  must  include  in  a  tax  list  every  taxable  inhabitaht'i-fesidjng  in  the  dis- 
trict at  the  time  the  list  is  made  out. 
Trustees  cannot  assess  an  individual  for  personal  property,  if  he  has  been  taxed 
for  none  on  the  last  assessment  roll  of  the  town,  upon  the  supposition  that  he 
^  may  have  more  than  his  debts  amount  to. 

The  following  questions  were  presented  for  the  opinion  of  the 
Superintendent  by  the  trustees  of  a  school  district  in  the  town  of 
Fallsburgh. 

1.  A.  B.  an  inhabitant  of  our  district  has  sold  his  farm  to 
another  inhabitant  of  the  district,  and  intends  going  to  the  west 
%#arly  in  the  spring.  •*" He  has  money  and  obligations  equal  to  the 
'•^^        ■'■■ 

:  ,.-^'      y 


342  *'»-*t-    CASKS    DECIDED   BY   THE 

amount  for  which  he  sold  his  farm.  A  tax  is  voted  to  build  a 
school-house.     What  should  the  trustees  do  in  relation  to  A.  B.? 

2.  The  town  assessors  have  assessed  C.  D.  for  his  real  estate, 
but  not  for  any  personal  property.  No  addition  to  his  property 
has  since  been  made.  Can  the  trustees  of  the  district  assess  him 
for  personal  property  upon  the  supposition  that  he  may  have 
more  than  his  debts  amount  to? 

By  John  A.  Dix,  March  21,  1837.  The  trustees  of  a  school 
district  have  no  discretion  to  exercise  as  to  the  persons  to  be  in- 
cluded in  a  tax  list.  They  must  include  every  taxable  inhabi- 
tant residing  in  the  district  at  the  time  the  list  is  made  out.  If  a 
man  sells  his  farm  after  the  assessment  roll  of  the  town  is  com- 
pleted, and  remains  in  the  district,  he  must  be  asse^ed  for  the 
price  of  the  farm,  if  he  is  paid  in  money  or  securities  for  the  pay- 
ment of  money,  deducting  his  debts,  unless  they  have  been  al- 
ready deducted  in  the  valuation  of  his  taxable  property  on  the 
town  roll.  In  short,  the  trustees  must  give  notice,  and  ascertain 
the  true  value  of  his  property  from  the  best  evidence  in  their 
power,  pursuant  to  sec.  80,  page  483,  1  R.  S.  this  being  a  case 
in  which  the  valuation  cannot  be  ascertained  from  the  last  as- 
sessment roll  of  the  town. 

The  trustees  of  a  district  have  no  authority  to  assess  an  indi- 
vidual for  more  personal  property  than  has  been  assessed  to  him 
on  the  assessment  roll  of  the  town,  upon  the  supposition  that 
he  may  have  personal  property  exceeding  the  amount  of  his 
debts.  The  assessment  roll  of  the  town  settles  the  matter,  and 
the  trustees  cannot  vary  the  amount,  but  from  some  knowledge 
of  an  alteration  after  that  roll  was  made  out,  or  to  correct  some 
known  and  acknowledged  error. 

The  Trustees  of  school  district  No.  5  in  the  town  of 
Rodman,  ex  parte. 

If  before  a  tax  is  assessed  the  trustees  ascertain  that  the  whole  amount  voted 
will  not  be  required,  they  may  make  out  a  tax  list  for  a  smaller  sum. 

In  this  case  a  tax  of  $180  was  voted  to  build  a  school-house, 
and  the  dimensions  of  the  building  were  agreed  on.  The  trus- 
tees immediately  entered  into  a  contract  with  a  builder,  who 
agreed  to  construct  the  house  for  $160.  The  question  present- 
ed was,  whether  they  could  make  out  a  tax  list  for  $160,  the 
amount  of  the  contract,  instead  of  $180,  the  amount  voted? 

By  John  A.  Dix,  April  5,  1837.  Under  a  vote  to  raise  $180 
you  may  raise  a  smaller  sum,  if  you  find  the  whole  is  not  re- 
quired to  accomplish  the  object  of  the  inhabitants  in  voting  it. 
No  one  can  be  injured  by  such  a  proceedmg. 

AS      ■"  ' 


% 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  343 

The  Inhabitants  of  joint  school  district  No.  12  in  the 
towns  of  Stockbridge  and  Vernon,  against  the 
Commissioners  of  Common  Schools  of  the  latter 
town. 

If  within  thirty  days  after  proceedings  complained  of,  notice  of  appeal  is  served 
and  the  papers  transmitted  to  the  Superintendent,  it  is  a  sufficient  compliance 
with  the  regulation,  and  ten  days  will  be  allowed  to  the  respondents  to  answer, 
after  the  service  of  such  notice. 

If  there  are  Indian  lands  within  the  limits  of  a  fown,  those  lands  may  be  incloded 
within  the  boundaries  of  school  districts. 

If  there  are,  within  the  boundaries  of  a  school  district,  Indian  children  whose 
education  is  provided  for  by  special  enactments,  they  must  not  be  included  in 
the  annual  reports  of  the  district. 

The  facts  of  this  case  are  stated  in  the  Superintendent's  order. 

By  John  A.  Dix,  April  17,  1837.  The  Superintendent  of 
Common  Schools  has  had  under  consideration  the  appeal  of  cer- 
tain inhabitants  of  joint  school  district  No.  12  in  the  towns  of 
Stockbridge  and  Vernon,  from  the  proceedings  of  the  commis- 
sioners of  common  schools  of  tlie  latter  town  on  the  23d  of  No- 
vember last,  in  setting  off  from  said  district  so  much  of  it  as  was 
comprised  within  the  boundaries  of  the  last  mentioned  town  and 
forming  a  new  district,  under  the  denomination  of  district  No.  15. 

With  respect  to  a  preliminary  objection  to  the  hearing,  raised 
by  the  respondents  on  account  of  delay  in  presenting  the  appeal, 
the  Superintendent  deems  the  regulations  substantially  complied 
with.  In  the  application  of  these  rules  a  liberal  interpretation 
has  always  been  given  to  their  requirements.  If  the  papers  in 
support  of  an  appeal  are  sent  to  the  Superintendent  within  thirty 
days,  and  notice  is  served  on  the  opposite  party  within  the  same 
time,  it  is  sufficient;  and  ten  days  thereafter  will  be  allowed  to 
the  respondent  to  answer.  The  proceedings  complained  of  in 
this  case  were  of  the  23d  of  November,  1836.  Copies  of  the  ap- 
pellants' papers  were  served  on  the  commissioners  of  common 
schools  of  the  town  of  Vernon  on  the  20th  December,  twenty- 
seven  days  afterwards,  and  the  original  affidavits  were  sent  to  a 
member  of  assembly  at  Albany,  to  be  presented  to  the  Superin- 
tendent. In  consequence  of  the  absence  of  the  member  refeiTed 
to,  the  papers  were  not  received  until  sometime  afterwards;  but 
as  they  were  prepared  and  sent  to  the  Superintendent,  and  no- 
tice of  the  appeal  was  given  within  thirty  days,  it  is  a  sufficient 
comphance  with  the  regulations. 

It  appears  that  school  district  No.  12  was  formed  on  the  23d 
of  May,  1819,  by  the  commissioners  of  common  schools  of  the 
town  of  Vernon.  In  describing  the  boundaries  of  the  district  the 
commissioners  commenced  at  the  southwest  corner  of  a  patent 
granted  to  John  Sargeant,  jr.  and  ran  the  line  southerly  to  the 


344  CASES    DECIDED    BY   THE 

south  line  of  the  town  of  Vernon ;  thence  northerly  on  the  west 
line  of  the  same  patent  to  the  northwest  corner  of  the  same ;  and 
thence  northerly,  parallel  with  the  east  line  of  the  Indian  lands,  to 
the  centre  of  the  Oneida  turnpike  road;  and  thence  westerly  to 
the  Avest  line  of  the  town  of  Vernon.  In  thus  describing  the 
boundaries  of  district  No.  12,  two  sides  of  the  district,  (the  southern 
and  western,)  are  left  untouched.  But  the  design  of  the  com- 
missioners is  obvious^  as  these  sides  were  bounded  by  the  town 
line,  which  Avas  the  limit  of  their  jurisdiction.  They  intended, 
beyond  all  doubt,  to  form  into  a  separate  district,  under  the  de- 
signation of  No.  12,  all  that  part  of  the  town  of  Vernon  lying 
between  Sargeant's  patent  on  the  east  and  the  town  line  oa  the 
west,  and  between  the  town  line  on  the  south  and  the  Oneida 
turnpike  road  on  the  north.  U{X)n  any  other  supposition  the  or- 
der would  be  incomprehensible  and  absurd. 

It  may  be  proper  to  observe  in  this  place,  that  in  an  affidavit 
jnade  by  Messrs.  Joseph  Pixley,  Silas  Seeber  and  George  Adams, 
it  is  alleged  that  "^ there  is  no  road  in  the  town  of  Vernon,  and 
never  has  been  one,  known  by  the  name  of  the  Oneida  turnpike : 
that  the  only  turnpike  within  three  miles  of  the  said  patent  of 
John  Sargeant,  jr.  was  the  Peterborough  turnpike."  The  Su- 
perintendent is  somewhat  surprised  that  this  assertion  has  been 
so  positively  made;  for  altliough  he  has  no  doubt  the  persons 
making  the  affidavit  intended  to  state  the  truth,  he  apprehends 
that  they  are  wholly  in  error  in  this  respect.  The  Oneida  Turn- 
[)ike  Road  was  established  by  that  name,  -as  will  be  seen  by  re- 
ference to  an  act  passed  the  31st  March,  1801,  before  the  town 
of  Vernon  was  erected,  and  by  an  amendment  of  the  charter  in 
the  year -1812,  chapter  15S  of  the  laws  of  that  year,  it  appeai-s 
that  it  still  retained  the  name  of  the  Oneida  Turnpike  Road, 
and  that  the  company  were  authorized  to  change  the  line  of 
their  route  between  the  school-house  in  Peterborough  and  a  spe- 
cified ix)jnt  in  the  town  of  Vernon.  Subsequently  to  this  time, 
until  the  formation  of  district  No.  12,  no  act  is  found  changing" 
the  name  of  the  corporation,  nor  has  the  SuperinteiKlent  been 
able  to  find  any  act  establishing  a  turnpike  road  by  the  name  of 
the  Peterborough  turnpike. 

If  it  was  the  intention  of  the  commissioners  to  include  within 
district  No.  12  the  territory  comprehended  by  the  lines  above 
mentioned,  the  question  arises,  whether  the  Indian  lands  which 
compose  a  part  of  it  could  be  lawfully  embraced  in  the  order  of 
the  commissioners  as  a  part  of  that  district?  On  the  settlement 
of  this  question  the  right  of  the  commissioners  of  common  schools 
of  the  town  of  Vernon  to  form  district  No.  15  must  necessarily 
depend,  as  by  the  erection  of  the  town  of  Stockbridge,  district 
No.  12  became  a  joint  district,  if  its  original  formation  was  legal. 


SUPERINTENDENT    OP    COMMON    SCHOOLS.  346 

and  it  coirid,  in  that  case,  be  altered  only  with  the  assent  and 
concurrence  of  the  commissioners  of  the  latter  town. 

To  determine  this  question,  it  will  be  necessary  to  enter  into 
a  brief  examination  of  the  legislation  of  this  state  in  relation  to 
Indian  lands,  with  a  view  to  ascertain  how  far  the  legislature 
has  claimed  to  exercise  jurisdiction  over  them. 

By  art.  3%  of  the  constitution  of  this  state^  adopted  in  the 
year  1777,  it  was  ordained,  that  no  purchases  or  contracts  for 
the  sale  of  lands  with  the  Indians  within  the  limits  of  this  state 
should  be  deemed  valid,  imless  made  under  the  authority  and 
with  the  consent  of  the  legislature. 

Although  the  avowed  object  of  this  provision  was  to  maintain 
|)eace  and  amity  with  the  Indians,  and  to  guard  against  discon- 
tents and  animosities  growing  out  of  frauds  practised  upon  them 
in  procuring  contracts  for  the  sale  of  their  lands,  the  effect  ne- 
vertheless was,  by  declaring  all  such  contracts  (unless  made  un- 
der the  authority  and  with  the  consent  of  the  legislature)  to  be 
void,  to  assume  with  respect  to  the  Indian  tribes,  a  right  to  con- 
trol and  regulate  the  alienation  of  their  lands. 

By  an  act  passed  the  17th  March,  1788,  to  punish  infractions 
of  the  article  of  the  constitution  above  referred  to,  it  was  enacted 
that  if  any  person  should,  without  the  authority  and  consent  of 
the  legislature,  purchase  any  Indian  lands  within  this  state,  or 
make  contracts  for  the  sale  of  such  lands,  he  should,  on  convic- 
tion thereof,  forfeit  one  hundred  pounds,  and  be  further  punished 
by  fine  and  imprisonment,  in  the  discretion  of  the  court. 

It  was  also  provided  by  the  same  act,'  that  any  person  selling, 
intruding,  or  entering  upon  any  such  lands,  by  virtue  of  such 
contract  or  sale,  should  be  subject  to  the  like  penalties. 

By  an  act  passed  the  25th  February,  1789,  it  was  provided 
that  a  certain  tract  of  land  confirmed  by  the  Oneida  Indians  to 
the  Slockbridge  Indians  should  remain  to  the  said  Stockbridge 
Indians,  but  without  any  power  of  alienation  or  right  of  leasing 
the  same  lands,  or  any  part  thereof,  for  a  longer  term  than  ten 
years. 

On  the  21st  February,  1791,  an  act  was  passed  authorizing 
the  male  Indians  residing  in  Brothertown  and  N6w-Stockbridge, 
above  21  years  of  age,  to  meet  together  on  the  first  Tuesday  of 
April  in  each  year,  to  choose  a  clerk,  a  marshal,  and  three  trustees. 
The  trustees  were  authorized,  with  the  consent  of  the  maj^or  of 
the  city  of  Albany,  to  lease  to  any  person  or  persons,  not  exceed- 
ing six  hundred  and  forty  acres,  for  a  term  not  exceeding  twen- 
ty-one years,  for  the  use  of  the  inhabitants  of  Brothertown  and 
Stockbridge;  the  rents  to  be  applied  to  the  maintenance  of  a  mi- 
nister and  free  school  for  the  instruction  of  the  Indians. 

By  an  act  passed  the  12th  April,  1791,  the  provisions  of  the 


^^ 


346  ,  CASES    DECIDED   BY    THE     .  .      . 

last  mentioned  act  were  substantially  re-enacted,  with  the  ex- 
ception that  three  peace-makers  were  to  be  chosen  annually,  in- 
stead of  three  trustees,  and  that  some  further  powers  were  given 
to  them,  and  to  the  Indians,  for  the  transaction  of  their  local 
concerns. 

By  an  act  passed  the  31st  March,  1795,  commissioners  were 
appointed  to  examine  into  and  adjust  differences  which  had  ari- 
sen between  the  Indians  of  Brothertown  and  the  white  inhabi- 
tants, in  consequence  of  leases  granted  to  the  latter  by  Indians 
in  their  individual  capacity;  and  the  said  commissioners  were 
authorized,  after  setting  apart  a  certain  piece  of  land  for  the  use 
of  the  Indians,  to  make  a  division  of  the  remainder  among  such 
persons  as  had  obtained  leases  from  the  Indians  and  were  actu- 
ally residing  on  the  lands,  and  to  sell  the  said  lands  to  such  per- 
sons ;  and  it  was  also  provided  that  no  white  person  should  be 
dispossessed  of  any  lands  which  he  held  under  a  lease  given  for 
ten  years  by  the  Indians  in  their  collective  capacity. 

By  an  act  passed  the  23d  March,  1797,  the  acts  authorizing 
the  Stockbridge  Indians  to  alienate  or  lease  any  part  of  the  tract 
confirmed  by  the  Oneida  Indians  to  them,  were  repealed. 

By  an  act  of  the  28th  February,  1804,  one  thousand  acres  of 
the  lands  of  the  Stockbridge  Indians  were  directed  to  be  leased 
in  fee  for  the  education  of  the  Indian  children  in  New-Stock- 
bridge. 

By  an  act  of  the  7th  April,  1806,  the  superintendents  of  the 
Brothertown  Indians  were  appointed  superintendents  of  the 
Stockbridge  Indians,  and  were  authorized  to  sell  or  lease  so 
much  of  their  land  in  New-Stockbridge  as  would  enable  them 
to  repair  their  mills  and  create  a  fund  for  the  support  of  old  and 
decrepit  persons. 

By  an  act  passed  the  3d  April,  1807,  the  superintendents  of 
the  Brothertown  Indians  were  authorized,  under  certain  restric- 
tions, to  sell  or  lease  so  much  of  their  land  on  the  turnpike  road, 
in  one  or  more  parcels,  as  they  should  judge  convenient  for  keep- 
ing public  houses. 

By  an  act  passed  the  8th  April,  1810,  the  sales  made  by  the 
superintendent  of  the  New-Stockbridge  Indians,  by  virtue  of 
the  authority  given  to  them  by  law,  of  certain  lands  belonging 
to  said  Indians,  were  ratified  and  confirmed. 

On  the  10th  April,  1813,  a  general  act  was  passed  in  relation 
to  the  different  tribes  and  nations  of  Indians  within  this  state, 
embodying  the  provisions  of  previous  laws.  The  first  section, 
among  other  provisions,  made  it  penal  for  any  person  to  purchase 
lands  of  any  Indian  residing  within  the  state,  or  to  enter  on 
any  lands  by  pretext  or  color  of  any  right  derived  from  such 


mv 


^Ai  *rti: 


SUPERINTENDENT    OF   COMMON   SCHOOLS.  347 

purchase  since  the  14th  of  October,  1775,  unless  made  with  the 
consent  and  authority  of  the  legislature. 

By  an  act  passed  the  22d  of  March,  1816,  the  section  contain- 
ing the  above  mentioned  provisions  was  suspended  in  relation  to 
the  Stockbridge  Indians,  so  far  as  regards  those  persons,  who, 
on  or  before  the  1st  of  February,  1815,  had  settled  on  the  Indian 
lands  by  virtue  of  leases  from  the  Indians.  The  effect  of  this 
provision  was  to  recognize  the  validity  of  the  possessions  acquir- 
ed by  white  settlers,  under  leases  granted  by  virtue  of  the  acta 
above  referred  to,  from  1789  to  1810. 

Under  the  protection  of  the  leases  thus  granted,  the  Indian 
lands  were  occupied  by  white  settlers  ;  and  the  lands  being  in- 
cluded within  the  boundaries  of  particular  towns,  those  settlers 
enjoyed  all  the  political  privileges  of  other  inhabitants  of  those 
towns. 

The  Indian  lands  within  this  state  have,  as  settlement  has 
reached  them,  been  included  within  our  municipal  divisions  like 
all  other  lands  within  the  boundaries  of  the  state,  and  as  has 
been  seen,  the  legislature  has  assumed,  from  the  earliest  times, 
to  exercise  a  sovereign  control  over  them. 

The  lands  belonging  to  the  Stockbridge  Indians,  usually 
known  as  New-Stockbridge,  and  now  constituting  the  town  of 
Stockbridge,  were  formerly  comprised  within  the  boundaries  of 
the  three  towns  of  Vernon,  Augusta  and  Lenox,  lying  partly  in 
each :  these  lands  constituted  a  part  of  those  towns ;  and  unless 
the  laws  provided  otherwise,  they  were  subject  to  be  included  in 
the  school  districts  into  which  these  towns  were  divided.  The 
act  for  the  better  establishment  of  common  schools,  passed  the 
15th  April,  1815,  was  in  force  when  school  district  No.  12  was 
formed ;  and  by  the  11th  section  it  was  provided,  that  it  should 
be  "  the  duty  of  the  commissioners  of  common  schools,  or  the 
major  part  of  them,  to  divide  their  respective  towns  into  a  suita- 
ble and  convenient  number  of  school  districts."  Under  this  pro- 
vision, the  commissioners  were  undoubtedly  authorized  to  in- 
clude in  the  school  districts  formed  by  them  all  the  territory  em- 
braced within  the  boundarite  of  their  respective  towns,  unless 
there  was  some  special  provision  to  the  contrary,  in  the  law  from 
which  their  powers  were  derived.  The  existence  of  such  a  pro- 
vision has  not  been  alleged,  and  none,  it  is  believed,  has  ever 
existed.  By  the  20th  section  of  the  act  last  referred  to,  the  trus- 
tees of  each  school  district  were  directed  to  include  in  their  an- 
nual reports  "  the  number  of  children  residing  in  such  district 
between  the  ages  of  5  and  15  years  inclusive,  except  Indian 
children,  otherwise  provided  for  by  law."  This  provision  was 
manifestly  intended  for  cases  in  which  Indian  lands  were  in- 
duded  within  the  boundaries  of  school  districts.     Thus,  in  New- 


348  CA»ES'iyECIDE!5  BY   THE     '*-^'^^** 

Stockbridge,  provision  had  been  made  for  the  education  of  the  In- 
dian children,  as  above  shown,  by  reference  to  the  act  of  28th  of 
February,  1804^  and  they  could  not,  under  the  act  of  15th  of  April, 
1815,  be  included  in  the  annual  reports  of  the  trustees  of  school 
district  No.  12 ;  but  if  there  were  on  Indian  lands  white  set- 
tlers under  leases  from  the  Indians,  granted  in  pursuance  of  the 
authority  contained  in  the  act  of  25th  of  February,  1789,  and 
other  subsequent  acts,  it  would  have  been  the  duty  of  the  trus- 
tees to  include  their  children  in  their  reports.  If  the  provision 
of  the  act  of  1815  was  not  intended  for  cases  precisely  similar 
to  this,  it  would  be  diflficult  to  imagine  its  object. 

On  a  full  review  of  the  law  applicable  to  the  case,  the  Super- 
intendent of  Common  Schools  has  no  doubt  that  the  commis- 
sbners  of  common  schools  of  the  town  of  Vernon  had  full  power 
to  include  within  the  limits  of  district  No:  12,  that  part  of  New- 
Stockbridge  which  was  comprised  within  the  boundaries  of  the 
town  of  Vernon  ;  nor  does  he  entertain  the  slightest  doubt,  that 
it  was  the  intention  of  the  commissioners  to  bound  the  district  by 
the  town  lines  on  the  south  and  west.  If  there  were  any  cause 
to  suppose  they  had  a  different  intention^  the  supposition  would 
be  repelled  by  the  fact,  that  the  question  of  boundary  has  never 
before  been  raised,  although  eigbteeit  years  have  elapsed  since 
the  district  was  formed,  and  by  the  consideration,  that  if  the 
town  lines  were  not  the  intendetl  limits  of  the  district,  the  order 
of  the  commissioners  would  be  absurd  on  its  face. 

It  is  unnecessary  for  the  purposes  of  this  decision  to  inquire 
whether  there  were  on  the  Stockbridge  lands  any  white  settlers 
within  the  town  of  Vernon.  Whether  there  were  or  not.  th« 
principle  is  the  same.  Those  lands  were  included  m  district  No. 
12,  and  as  they  have  become  settled  by  white  persons,  those 
persons  are  entitled  to  all  the  benefits  of  the  common  school  sys- 
tem, equally  with  the  inhabitants  of  the  district  residing  without 
the  Indian  boundary. 

This  point  being  settled,  the  case  is  disposed  of  without  dif- 
ficulty.    ''* 

By  the  erection  of  the  town  of  Stockbridge^  tliat  part  of  dis- 
trict No.  12  which  was  comprised  within  the  boundaries  of  the 
lands  belonging  to  the  Stockbridge  Indians,  at  the  time  the  dis- 
trict was  formed,  became  a  part  of  that  town.  District  No.  12, 
therefore,  became,  according  to  a  principle  long  since  settled  by 
the  Superintendent  in  a  like  case,  a  joint  school  district-,  and 
could  only  be  altered  with  the  concurrence  of  a  maJDr  part  of 
the  commissioners  of  common  schools,  of  the  towns  of  Vernon 
and  Stockbridge.  The  commissioners  of  the  former,  by  •s='um- 
ing  to  alter  it  without  the  concurrence  of  the  commissioners  of 


JSUPERINTENDENT   OF  COMMON   SCHOOLS.  349 

the  latter,  have  exceeded  their  powers,  and  their  proceedings  are 
void  for  want  of  authority. 

It  is  accordingly  decided,  that  the  proceedings  of  the  commis- 
sioners of  common  schools  of  the  town  of  Vernon,  in  dividing 
joint  school  district  No.  12,  in  Vernon  and  Stockbridge,  are, 
and  they  are  hereby  declared  to  be,  void  and  of  no  effect. 

The  Commissioners  of  Common  Schools  of  the  town 
of  Blenheim,  ex  parte. 

If  a  new  district  is  formed  so  soon  before  the  first  of  January  as  not  to  hare  had 
time  to  have  a  school  kept  three  months  by  a  qualified  teacher,  and  if  part  of 
said  district  is  taken  from  a  district  in  which  a  school  has  been  kept  three 
months  by  a  qualified  teacher,  and  thejesidue  from  territory  not  belonging  to 
any  district,  such  new  district  should  be  allowed  a  share  of  the  public  money. 

This  was  an  application  for  the  direction  of  the  Superinten- 
dent, by  the  commissioners  of  common  schools  of  the  town  of 
Blenheim,  with  regard  to  the  propriety  of  including  one  of  the 
school  districts  in  said  town,  in  the  apportionment  of  the  public 
moneys.  The  district  had  been  formed  so  soon  before  the  Ist  of 
January  preceding,  as  not  to  allow  a  sufficient  time  for  keeping 
a  school  therein  three  months.  Part  of  the  district  was  taken 
from  one  of  the  other  districts  in  the  town,  in  w'hich  a  school 
had  been  taught  three  months  by  a  quahfied  teacher  during  the 
preceding  year,  and  the  residue  of  the  new  district  was  com- 
posed of  territory  which  had  never  been  included  in  the  boun- 
daries of  any  district. 

By  John  A.  Dix,  April  18,  1837.  School  districts  are  en- 
titled to  a  share  of  the  public  money,  if  they  have  been  so  re- 
cently formed,  previous  to  the  1st  of  January,  as  not  to  have 
had  time  to  keep  a  school  three  months ;  and  when  formed  sub- 
sequently to  the  first  of  January,  and  before  the  apportionment  of 
the  school  moneys  they  are  entitled  to  a  share  of  those  moneys, 
if  they  have  been  set  off  from  districts  in  which  schools  have 
been  taught  three  mouths  by  a  qualified  teacher,  during  the  pre- 
ceding year.  The  only  limitation  of  this  rule  is,  where  a  dis- 
trict has  been  formed  without  the  consent  of  the  trustees  of  the 
district  or  districts  from  which,  it  is  taken,  and  where,  as  the  al- 
teration cannot  take  effect  for  three  months,  the  new  district  is 
not  in  operation  at  the  time  of  the  apportionment,  so  that  there  is 
no  authority  existing  within  it  to  receive  and  apply  the  public 
money.  It  appears  to  me,  that  there  can  be  no  diflSculty  in  the 
case  presented  by  you,  if  part  of  the  new  district  was  taken 
from  a  school  district  which  fulfilled  all  the  requirements  of  the 
law,  and  the  residue  is  composed  of  territory  not  before  annexed 
to  any  district.  On  every  principle  of  equity  the  district  should 
receive  such  share  of  the  school  moneys  as  the  whole  number  of 


iv- 


if 


350  "^-'^r  CASES  DECIDED  BY  vk'i 

children,  between  5  and  16  years  of  age,  residing  within  it,  en- 
title it  to.  If  any  part  of  the  district  had  been  taken  from  an- 
other organized  district,  in  which  a  school  had  not  been  kept 
three  months  during  the  previous  year  by  a  qualified  teacher,  that 
part  would  necessarily  be  excluded  from  the  apportionment,  which 
would  be  made  in  reference  to  the  children  residing  in  the  other 
part  of  the  new  district.  The  reason  of  such  exclusion  is  just, 
because  if  the  part  so  excluded  had  continued  to  be  a  part  of  the 
district  from  which  it  was  set  off,  it  could  have  received  none  of 
the  school  moneys. 

The  case  presented  by  you,  is  one  not  specially  provided  for  by 
law.  But  as  part  of  the  new  district  has  been  taken  from  a  dis- 
trict which  has  complied  with  the  law.  there  can  be  no  question 
as  to  the  right  of  this  part  to  a  share  of  the  school  moneys. — 
And  as  to  the  other  part,  since  it  has  never  been  attached  to  any 
district,  there  has  been  no  failure  to  comply  with  the  require- 
ments of  the  law  ;  and  it  is  in  respect  to  a  failure  to  fulfil  those 
requirements,  where  a  compliance  is  possible,  that  a  forfeiture  is 
provided.  You  can  pay  over  to  the  district  the  money  retained 
in  your  hands. 

The  Trustees  of  school  district  No.  3  in  the  town  of 
Baltston,  ex  parte. 

Rail-road  companies  are  taxable  on  their  rail-ways,  and  other  fixtures  connected 
therewith,  as  real  estate,  in  the  school  districts  within  which  such  real  estate 
is  situated. 

This  was  an  application  from  the  trustees  of  school  district 
No.  3  in  the  town  of  Ballston,  for  the  advice  of  the  Sujierinten- 
dent  with  regard  to  their  right  to  include  in  a  tax  list  the  rail- 
way and  fixtures  of  the  Rensselaer  and  Saratoga  Rail-Road 
Company,  about  a  mile  and  a  half  of  the  rail-way  of  which  was 
included  in  the  boundaries  of  that  district. 

By  John  A.  Dix,  April  21,  1837.  By  a  decree  of  the 
chancellor  of  this  state,  4th  vol.  Paige's  Chan.  Rep.  384,  it  has 
been  decided  that  rail-road  "  companies,  whose  stock,  or  the 
principal  part  thereof,  is  vested  in  the  lands  necessary  for  their 
roads,  and  in  their  rail-ways  and  other  fixtures  connected  there- 
with, are  taxable  on  that  portion  of  their  capital  as  real  estate 
in  the  several  towns  or  wards  in  which  such  real  estate  is  situa- 
ted." They  are,  of  course,  taxable  in  school  districts  for  com- 
mon school  purposes,  on  so  much  of  such  real  eatate  as  is  in- 
cluded within  the  boundaries  of  those  districts. 

In  the  decree  referred  to,  it  was  also  decided,  that  such  real  estate 
"  is  to  be  taxed  upon  its  actual  value  at  the  time  of  the  assess- 
ment, whether  that  value  is  more  or  less  than  the  original  (ost 
thereof"         '■-  -     -    :-  ^,.       —   -  -"^^^    -^ 


^4c 


SUPERINTENDENT    OP    COMMON    SCHOOLS.  351 

la  ascertaining  the  value  of  so  much  of  such  real  estate  as  is 
included  within  the  boundaries  of  a  school  district,  the  trustees 
must,  from  the  necessity  of  the  case,  be  guided  by  the  best  evi- 
dence which  it  is  in  their  power  to  obtain.  They  should  ascer- 
tain from  the  assessment  roll  of  the  town,  the  aggregate  value 
of  so  much  of  the  real  estate  of  the  company  as  is  within  the 
town.  They  should  then  ascertain  whether  the  proportion  of  that 
value,  in  respect  to  the  rail-way  included  within  their  district,  is 
equal  to  the  value  of  the  whole  of  the  real  estate  of  the  company 
included  within  another  district  in  which  the  length  of  the  rail-way 
is  the  same.  This  cannot  always  be  the  case,  for  within  the  boun- 
daries of  one  school  district  the  company  will  have  a  depot,  while 
it  has  none  in  another  district.  Within  one  school  district,  the  rail- 
way may  have  a  double,  while  in  another,  it  may  have  but  a  single, 
track.  All  these  circumstances  must  be  asceitained  and  taken 
into  consideration  by  the  trustees.  If  the  company  has  in  a 
school  district  nothing  but  its  rail-way,  and  has  a  depot  within 
the  same  town,  then  the  value  of  the  depot  should  be  deducted 
from  the  valuation  of  the  real  estate  of  the  company  on  the  last 
assessment  roll  of  the  town,  as  preliminary  to  a  valuation  of 
that  part  of  the  rail-way  which  is  within  the  boundaries  of  such 
district.  I  make  these  suggestions  for  your  consideration,  leav- 
ing it  to  the  trustees  to  observe  the  directions  contained  in  sec. 
SO,  page  483,  IRS. 

The  Clerk  of  school  district  No.  7  in  the  town  of 
West  Turin,  ex  parte. 

If  a  special  meeting  is  called  under  a  notice  to  take  into  consideration  the  pro- 
priety of  building  a  new  sch(x>i-house,  and,  if  thought  proper,  to  lay  a  tax  for 
the  purpose,  it  is  a  sufficient  notice  to  warrant  the  inhabitants  at  such  meeting 
to  vote  a  tax  to  repair  the  old  school-house. 

In  school  district  No.  7  in  the  town  of  West  Turin,  the  fol- 
lowing notice  was  issued  by  the  trustees : 

"  To  the  Clerk  of  school  district  No.  7  in  West  Turin :  We, 
the  subscribers,  trustees  of  said  district,  hereby  order  you  to  no- 
tify the  taxable  inhabitants  of  the  aforesaid  district,  that  a  spe- 
cial school  meeting  will  be  held  at  the  school-house  in  said  dis- 
trict on  the  23d  day  of  March  inst.  at  6  o'clock  P.  M.,  for  the 
purpose  of  taking  into  consideration  the  propriety  of  building  a 
new  school-house  in  said  district,  and  if  thought  advisable  at 
said  meeting  to  build,  then  to  levy  a  tax  on  the  inhabitants  of 
said  district  for  the  purpose  of  building.  Dated  at  West  Turin 
this  14th  day  of  March,  1837. 

H.  Johnson,       ) 

N.  Wood,  \  Trustees:^  '' 

F.  E.  Taylor,  ) 


4** 


352  CASES    DECIDED    BY    TUE 

The  question  submitted  to  the  Superintendent  was,  whether 
at  the  meeting  called  in  pursuance  lo  this  notice,  a  tax  could  be 
voted  to  repair  the  old  school-house. 

By  John  A.  Dix,  Api'U2i,  1837,  I  am  of  opinion  that  the 
notice  given  in  your  district  on  the  14th  of  March  for  a  special 
meeting  to  "  take  into  consideration  the  propriety  of  building  a 
new  school-house  in  said  district,  and  if  thought  advisable  at 
said  meeting  to  build,  then  to  levy  a  tax,"  <fcc.,  was  sufficient  to 
justify  the  inhabitants  to  vote  a  lax  to  repair  the  old  house. 
The  two  objects  are  so  nearly  allied  that  no  one  can  complain  of 
surprise ;  and  it  seems  to  be  manifest  that  if  the  main  object  of 
the  meeting,  that  of  raising  money  to  build  a  new  school-house, 
should  fail,  the  other,  that  of  raising  money  to  repair  the  old 
one,  almost  necessarily  follows.  If  any  one  felt  aggrieved,  he 
should  have  appealed  within  the  time  limited  by  regulation ; 
but  as  there  is  no  appeal,  the  trustees  may  go  on  and  levy  on 
the  taxable  property  of  the  district  the  sum  voted. 

The  Commissioners  of  Common  Schools  of  the  town 
of  Burton,  ex  parte. 

When  a  town  is  divided  and  anew  one  formed,  after  the  assessment  of  taxes 
has  been  made  in  the  former,  the  school  moneys  levied  on  such  town  should, 
when  collected,  be  divided  in  the  same  proportion  as  the  moneys  derived  from 
the  common  school  fund. 

On  the  12th  of  May,  1836,  an  act  was  passed  dividing  the 
town  of  Burton  and  erecting  the  town  of  Humphrey  from  a  part 
of  it,  the  first  town  meeting  in  which  was  to  be  held  on  the  first 
Tuesday  of  March,  1837.  The  question  presented  was,  in  what 
manner  the  amount  levied  for  common  school  purposes  on  the 
taxable  property  of  the  town  of  Burton  in  1830,  should  be  di- 
vided between  that  town  and  the  new  town  of  Humphrey,  with 
a  view  to  the  apportionment  to  be  made  on  the  first  Tuesday  of 
April. 

By  John  A.  Dix,  Mai/  13,  1837.  The  moneys  levied  in 
the  town  of  Burton  for  common  school  purposes,  previous  to  the 
time  at  which  the  act  for  the  erection  of  the  town  of  Humphiey 
took  effect,  must  be  divided  between  those  towns  in  the  same 
proportion  in  which  the  moneys  distributed  to  the  towns  from 
the  common  school  fund  were  apportioned  by  the  Superinten- 
dent to  the  towns  of  Humphrey  and  Burton.  Thus,  the  origi- 
nal town  of  Burton  was  entitled  to  |540.94,  of  which  the  sum 
of  $18.31  was  given  to  Humphrey,  leaving  to  Burton  the  sum 
of  $22.63;  or.  for  every  dollar  given  to  Humphrey,  $1.23 
should  be  given  to  Burton.  This  is  as  near  an  approximation 
to  a  Ut^fi  xe^uU  as  caji  be  attained. 


superintendent  of  common  scilools.  353 

(anonymous.) 

A  commissioner  of  common  schools  may  be  a  trustee  of  a  school  district. 

By  John  A,  Dix,  May  19,  1837.  A  commissioner  of  com- 
mon schools  may  be  a  trustee  of  a  school  district ;  that  is,  there 
is  no  legal  disqualification.  At  the  same  time,  it  is  better  that  no 
one  individual  should  hold  both  offices,  as  questions  may  arise  in 
which  there  may  be  conflicting  interests  to  adjust  between  the 
commissioners  and  trustees.  At  all  events,  a  proper  feeling  of 
delicacy  would  seem  to  suggest,  in  such  a^^se,  that  the  individual 
should  resign  one  office  or  the  other. 

The  Trustees  of  school  district  No.  4  in  the  town  of 
Sharon,  ex  parte. 

If  the  inhabitants  of  a  school  district  authorize  the  trustees  to  select  a  site  for  a 
school-house,  it  is  not  a  legal  site  until  subsequently  fixed  by  a  vote  of  the  in- 
habitants. 

The  inhabitants  of  a  school  district  cannot  authorize  the  trustees  to  borrow  mo- 
ney. 

If  part  of  a  resolution  passed  by  the  inhabitants  of  a  school  district  is  void,  the 
whole  resolution  is  vitiated. 

Jf  at  an  annual  meeting  a  vote  is  passed  in  relation  to  the  erection  of  a  school- 
house  or  the  choice  of  a  site,  and  a  special  meeting  is  subsequently  called  un- 
der a  notice  to  reconsider  the  proceedings  of  the  annual  meeting,  it  is  a  suffi- 
cient designation  of  the  object  of  the  meeting  to  justify  the  inhabitants  in  re- 
scinding or  modifying  such  vote. 

This  was  an  application  to  the  Superintendent  for  his  opinion 
with  regard  to  certain  proceedings  in  school  district  No.  4  in  the 
town  of  Sharon.  The  facts  of  the  case  are  stated  in  his  opi- 
nion. 

By  John  A,  Dix,  May  29,  1837.  On  the  3d  day  of  April 
last,  at  an  annual  meeting  held  in  school  district  No.  4  in  the 
town  of  Sharon,  a  vote  was  taken  to  build  a  stone  school-house, 
the  site  to  be  selected  by  the  trustees  between  two  points  desig- 
nated in  the  resolution.  It  was  also  voted  at  the  same  time  that 
the  trustees  should  borrow  $125  for  the  purpose  of  procuring  ma- 
terials for  the  building- 

At  a  subsequent  day,  the  Uustees  having  met  to  receive  pro- 
posals for  building,  it  was,  on  reflection,  deemed  advisable  to  call 
a  special  meetiiag  of  the  inhabitants  of  the  district  for  the  pur- 
pose of  reconsidering  the  former  proceedings.  A  meeting  was 
accordingly  called  on  the  3d  of  May  inst.  for  the  purpose  of  tak- 
ing ^'  into  consideration  the  propriety  of  reconsidering  the  pro- 
ceedings of  the  annual  meeting,  and  such  other  business"  as  the 
inhabitants  should  find  necessary.  Due  notice  was  given  to  ev- 
ery inhabitant  entitled  to  vote,  and  the  meeting  was  held,  four- 
fifths  of  the  whole  number  of  inhabitants  being  present.     On 

^  ^        r 


354  CASES    DECIDED   BY   THE 

reconsidering  the  proceedings  of  the  annual  meeting,  it  was 
unanimously  resolved  that  the  school-house  should  be  built  of 
wood  instead  of  stone,  and  a  lax  of  $"250  was  voted  for  the  pur- 
pose. 

The  proceedings  of  the  annual  meeting  in  relation  to  building 
a  school- house  arc  void,  for  the  following  reasons :  1st.  The  in- 
habitants of  the  district  must  designate  the  site  for  the  school- 
house  themselves ;  they  cannot  leave  the  choice  to  the  trustees* 
or  to  any  other  persons.  2d.  The  inhabitants  of  a  school  dis- 
trict cannot  authorize  the  trustees  to  borrow  money.  No  part  of 
the  proceedings  was  authorized  by  law,  excepting  so  much  as 
relates  to  the  materials  of  which  the  house  was  to  be  built.  By 
the  statement  presented  to  me,  it  would  appear  that  the  vote  au- 
thorizing the  trustees  to  fix  the  site  for  the  school-house  was  part 
of  the  same  resolution  which  prescribed  the  nature  of  the  mate- 
rials to  be  used.  The  whole  resolution  must  therefore  fall,  as 
that  part  of  it  which  is  void  vitiates  the  residue;  but  if  that  part 
which  relates  to  the  materials  could  be  sustained,  it  would  make 
no  difference,  as  the  vote  at  the  subsequent  meeting  annulled  it. 

The  proceedings  of  the  meeting  on  the  3d  of  May  are  valid. 
The  only  question  which  can  possibly  arise  is,  whether  the  no- 
tice was  sufficient?  On  this  point  I  entertain  no  doubt.  The 
law  does  not  prescribe  that  the  object  of  a  special  meeting  shall 
be  stated  in  the  notice.  This  duty  is  enjoined  by  the  Superin- 
tendent in  the  directions  and  forms  of  proceedings  furnished  by 
him,  and  he  will  require  in  all  cases  that  it  shall  be  performed 
in  good  faith.  The  notice  for  the  meeting  on  the  3d  May,  set 
forth  that  the  object  was  to  reconsider  "  the  proceedings  of  the 
annual  meeting."  The  proceedings  referred  to  were  a  matter  of 
notoriety,  and  it  is  not  alleged  that  any  one  has  been  taken  by 
surprise  in  rescinding  them,  so  far  as  the  school  house  is  directed 
to  be  built  of  wood  instead  of  stone.  Indeed,  it  is  manifest  from 
the  great  proportion  of  the  inhabitants  who  attended  the  meet- 
ing, and  from  the  unanimity  which  distinguished  it,  that  the 
voice  of  the  district  has  been  fairly  and  clearly  expressed.  To 
attempt  to  overthrow  the  proceedings  upon  grounds  merely  tech- 
nical, is,  to  say  the  leeist,  ungracious,  and  can  lead  to  no  good 
result.  But  even  the  want  of  technical  regularity  k  not  shown. 
The  notice  is  a  substantial  compliance  with  (he  forms  and  direc- 
tions prescribed  by  the  Superintendent ;  and  the  object  of  the 
notice,  to  appiize  each  inhabitant  oi  the  business  proposed  to  be 
acted  on,  seems  to  have  been  fully  attained.  The  trustees  should 
proceed  to  collect  the  tax. 

At  the  last  meeting  no  vote  was  taken  in  relation  to  the  site. 
As  has  already  been  stated,  it  must  be  designated  by  the  inha- 
bitants,  although  such  designation  need  not  necessarily  precede 


# 


SUPERINTENDENT    OF    COMMON    SCHOOLS.  355 

the  coUection  of  the  tax.  At  the  same  time,  the  most  unexcep- 
tionable course  of  proceeding  in  all  cases,  is  to  designate  the  site 
first,  and  then  vote  the  tax  to  purchase  it  and  build  the  school- 
house.  ' 

The  trustees  may,  if  they  choose,  examine  the  ground  be- 
tween the  two  points  mentioned  in  the  resolution  passed  on  the 
3d  of  April,  but  such  examination  can  only  be  for  the  purpose  of 
giving  their  advice  to  the  inhabitants  at  a  future  meeting  with 
regard  to  a  proper  place  for  a  site  for  the  district  school-house.  .  ^ 
This  proceeding  can  have  no  force  whatever,  so  far  as  the 
choice  of  the  site  is  concerned.  To  make  the  selection  legal,  the 
inhabitants  must  give  a  direct  vote  upon  it,  and  fix  the  spot  on 
which  the  school-house  is  tostand.  "A.'. 

The  Trustees  of  school  district  No.  8  in  the  town  of 
Kingsbury,  against  the  Commissioners  of  Common 
Schools  of  said  town,  # A  ' 

If  a  school  district  formed  nine  months  befin-e  the  first  of  January,  is  unable  to  pro- 
cure a  suitable  room  for  Iceeping  school,  and  cannot  succeed  in  building  a 
school-house  in  time  to  have  a  school  kept  three  months  by  a  qualified  teach- 
er, the  Superintendent  will,  on  application  to  him,  allow  such  district  a  por- 
"  tion  of  the  public  moneys,  if  the  time  during  which  the  inhabitants  have  con- 
.,  tributed  to  the  support  of  a  school  by  a  qualified  teacher  in  the  new  district, 
and  in  the  district  from  which  it  was  taken,  is  equal  to  three  months. 

This  was  an  appeal  to  the  Superintendent  by  the  trustees  of 
school  district  No.  8  in  the  town  of  Kingsbury,  under  circum- 
itances  which  are  fully  explained  in  the  Superintendent's  order. 

By  John  A.  Dix,  May  29,  1837.  On  the  28th  day  of 
March,  1836,  school  district  No.  8  in  the  town  of  Kingsbury, 
was  divided,  and  school  district  No,  15  was  formed  from  a  part 
of  it.  The  latter  district  was  organized  by  the  appointment  of 
officers  on  the  11th  of  April  ensuing.  On  the  2d  of  May  a  site 
for  a  school-house  was  selected,  and  arrangements  were  soon  af- 
terwards made  for  building  the  house  ;  but  the  difficulty  of  pro- 
curing labor  and  materials  at  that  season  of  the  year  was  such 
that  the  house  was  not  completed  until  the  last  of  November. 
In  consequence  of  this  difficulty,  and  the  impossibility  of  hiring 
a  building  for  a  school-house,  an  agreement  was  entered  into 
with  district  No.  8,  and  the  inhabitants  of  No,  15  continued 
through  the  summer  to  send  their  children  to  the  school  in  that 
district.  On  the  1st  of  December  ensuing,  the  school-house  in 
No.  15  being  completed,  a  school  was  commenced  by  a  qualified 
teacher,  and  continued  to  the  end  of  the  year.  The  school  in 
No.  8,  to  which  the  inhabitants  of  No,  1 5  had  sent  their  child- 
ren during  two  months  and  a  half  of  the  summer  term,  was 
also  kept  by  a  qualified  teacher,  so  that  they  hvid,  for  more  than 


r^ —  w  -  ~r  ■* 
356  CASES    DECIDED    BY    THE  ' 

three  months,  during  the  year  1836,  and  subsequently  to  their 
separation  from  No.  8,  contributed  to  the  support  of  a  school 
kept  by  a  qualified  teacher.  Sclux>l  district  No.  8  had  also,  dur- 
ing the  year  1836,  a  school  kept  by  a  quahfied  teacher  for  the 
full  period  of  three  months. 

The  facts  above  stated  were  substantially  presented  by  the  an- 
nual report  of  district  No.  15  to  the  commissioners  of  common 
schools,  who  refused,  in  apportioning  the  school  moneys  for  the 
present  yeai ,  to  allow  any  portion  of  them  to  No.  15.  From  this 
decision  the  trustees  of  district  No.  15  appeal.  A  copy  of  the 
appeal,  with  the  proper  notice,  has  been  served  on  the  commis- 
sioners, and  as  they  do  not  answer,  the  Superintendent  infers 
that  they  are  willing  to  submit  the  case  for  his  decision  upon  the 
facts  stated  by  the  appellants. 

By  the  act  of  April  21,  1831,  where  "^a  school  district  shall 
have  been  formed  at  such  time  previous  to  the  first  of  January 
as  not  to  have  allowed  a  reasonable  time  to  have  kept  a  school 
therein  for  the  term  of  three  months,"  it  becomes  entitled  to  a 
share  of  the  public  moneys,  if  it  is  formed  out  of  a  district  in 
which  a  school  shall  have  been  kept  three  months  by  a  qualified 
teacher.  School  district  No.  15  was  formed  in  the  month  of 
March,  1836.  It  bad,  therefore,  more  than  nine  months  before 
the  expiration  of  the  year  for  keeping  such  a  school.  This  was 
certainly  a  reasonable  time,  and  the  commissioners  of  common 
schools  were  right  in  refusirtg  to  apportion  to  it  a  share  of  the 
school  moneys.  The  only  question  for  them  to  decide  was, 
whether  the  district  had  a  reasonable  time  before  the  1st  of  Janu- 
ary to  keep  a  school  three  months?  And  this  question  being  de- 
cided in  the  affirmative,  tliey  could  not  allow  it  any  portion  of  the 
pubUc  money. 

But  there  are  circumstances  in  this  case  which,  though  they 
could  not  be  taken  into  consideration  by  the  commissioners  for 
the  purpose  of  varying  the  plain  requirements  of  the  law,  may 
be  properly  addressed  to  the  Superintendent,  with  a  view  to  such 
an  interposition  on  his  part  as  to  save,  if  possible^  the  equitable 
rights  of  the  district. 

The  obgect  of  the  provision  of  the  act  of  1831,  above  quoted, 
was  to  secure  to  districts  formed  at  so  late  a  period  of  the  year  as 
not  to  have  afforded  sufficient  time  to  have  a  school  kept  in  them 
by  a  qualified  teacher  for  the  perbd  of  three  months  before  the 
first  of  January  ensuing,  on  which  day  the  annual  reports  of  the 
school  districts  must  be  dated,  a  participation  in  the  distribution 
of  the  school  nwneys  to  be  made  on  the  basis  of  those  reports. 
With  this  provision  was  connected  another  which  was  intended 
to  put  such  districts  on  the  footing  of  all  others  in  the  state;  that 
they  should  not  receive  any  share  of  the  school  moneys  unless 


V 


fp^ 


SUPERINTENDENT    OF   COMMON   SCHOOLS.  357 

they  were  taken  from  districts  in  which  schools  had  been  kept 
three  months  by  a  qualified  teacher,  during  the  year  preceding  the 
first  of  January.  This  is  a  fundarhental  provision  of  the  com- 
mon school  system,  and  is  deemed  indispensable  to  maintain  its 
efficiency.  As  has  been  already  seen,  district  No.  15  had  substan- 
tially fulfilled  this  requirement.  Not  only  had  district  No.  8, 
trom  which  it  was  taken,  supported  for  three  months  previous 
to  the  first  of  January  a  scliool  kept  by  a  qualified  teacher,  but 
the  inhabitants  of  No.  15  had  contributed  to  the  maintenance 
of  such  a  school  for  more  than  three  months.  The  design  of 
the  law  had,  in  this  respect,  therefore,  been  accomplished. 

It  is  true  that  district  No.  15  had  a  reasonable  time  before  the 
first  of  January  to  have  a  school  kept  within  it  three  months;  and 
but  for  strong  reasons  the  Superintendent  would  not  deem  him- 
self at  liberty  to  interpose.  These  reasons  consist  in  the  inabili- 
ty of  the  district  to  procure  a  proper  building  for  keeping  school 
while  the  school-house  was  in  a  course  of  construction,  and  the 
difficulty  of  procuring  labor  and  materials  to  complete  the  house 
before  the  last  of  November.  The  inhabitants  did  all  in  their 
power,  under  the  circumstances,  to  carry  into  execution  the  re- 
quirements of  the  law.  They  entered  into  an  arrangement  with 
the  district  from  which  they  were  taken,  and  provided  their  chil- 
dren, at  the  school  in  that  district,  with  the  instruction  which  the 
law  enjoins.  If  there  had  been  any  laches  on  their  part;  and  if 
they  had  not  contributed  to  the  support  of  a  school  kept  by  a  quali- 
fied teacher,  so  as  to  make  up  the  legal  term  of  instruction,  the 
Superintendent  would  not  interpose.  But  as  the  inhabitants  of 
the  district  have  acted  in  good  faith,  and  have  substantially  carried 
into  effect  the  requirements  of  the  law ;  and  as  they  were  pre- 
vented by  causes  not  within  their  control  from  complying  lite- 
rally with  these  requirements : 

It  is  hereby  ordered,  that  the  commissioners  of  common  schools 
of  the  town  of  Kingsbury  pay  to  the  trustees  of  school  district 
No.  15  in  said  town,  out  of  the  school  moneys  next  to  be  distri- 
buted, such  sum  as  that  district  would  have  been  entitled  to  re- 
ceive for  the  present  year,  if  a  school  had  been  kept  therein  three 
months  during  the  year  1836  by  a  qualified  teacher. 

The  Trustees  of  school  district  No. in  the  town 

of  Batavia,  ex  parte. 

If  an  inhabitant  removes  from  a  district  before  the  end  of  one  month  after  a  tax 
18  voted,  and  before  the  tax  list  is  dehvered  to  the  collector,  he  cannot  be 
included  in  it,  the  tax  list  not  being  complete  until  the  end  of  the  month,  if  it 
remains  in  the  hands  of  the  trustees. 

In  this  case  a  tenant  in  the  occupation  of  a  farm  in  a  school 
district  in  the  town  of  Batavia  removed  from  the  district  after  a 


V 


-V 


358  CASES    DECIDED    BY    THE 

tax  was  voted,  but  before  the  tax  list  was  put  into  the  bands  of 
rfie  collector;  but  it  did  not  appear  distinctly  from  the  statement 
presented  to  the  Superintendent,  whether  one  month  had  elapeed 
after  the  tax  was  voted  and  before  the  tenant  removed. 

By  John  A.  Dix,  Ju?ie  13,  1837.  If  the  tenant  referred  to 
in  your  letter  was  a  taxable  inhabitant  of  the  district  at  the  lime 
the  tax  list  was  made  out,  he  should  have  been  included  in  it,  and 
if  he  removed  subsequently,  he  would  be  liable  for  the  amount 
of  the  tax  assessed  to  him.  The  only  question  is,  when  was 
the  tax  list  made  out?  I  think  the  tax  list  must  be  considered  in- 
complete, if  it  remains  in  the  hands  of  the  trustees^  until  the  last 
day  of  the  month  allowed  them  for  making  it  out ;  and  if  an  in- 
habitant removes  from  the  district  before  that  day  he  cannot  be 
included  in  it  If  they  deliver  it  to  the  collector  at  the  end  of 
fifteen  or  twenty  days,  it  is  beyond  their  control,  and  they  can- 
not recall  it  for  the  purpose  of  making  alterations,  though  mere 
errors  discovered  after  that  tune  may  be  corrected.  But  if  the 
tax  list  remains  in  their  hands  until  the  twenty-ninth  day  after 
the  tax  was  voted,  they  may  and  should  make  it  conform  to  the 
condition  of  the  district  in  respect  to  its  taxable  inhabitants  on 
that  day.  After  the  expiration  of  the  month  they  can  make  no 
alteration  in  it,  though  it  may  not  have  been  delivered  to  the  col- 
lector. 

The  Trustees  of  school  district  No. in  the  town 

,  of  Ovid,  ex  parte. 

When  a  new  district  is  formed,  if  the  commissioners  of  common  schodt  neglect 
to  issue  a  notice  for  the  first  district  meeting,  within  tvyenty  days,  they  may 
issue  it  at  a  subsequent  time. 

If  a  notice  is  issued  for  the  first  district  meeting  in  a  new  district,  formed  withoBt 
the  consent  of  the  trustees  of  the  district  or  districts  from  which  it  was  taken, 
and  the  time  fixed  for  such  meeting  is  within  three  months  after  service  of 
notice  on  such  trustees  of  the  alteration  made  in  their  districts,  the  notice 
issued  for  such  first  district  meeting  is  void,  and  the  commissioners  may  issue 
another  at  a  subsequent  time. 

If  the  notice  for  the  first  district  meeting  in  a  new  district  is  not  void,  but  merely 
defective  in  form,  application  may  be  made  to  the  Superintendent  to  amend  it. 

This  was  an  appUcation  for  the  opinion  of  the  Superintendent 
in  a  case  in  which  a  new  district  had  been  formed  in  the  town 
of  Ovid,  and  in  the  organization  of  which  a  doubt  had  arisen  as 
to  the  effect  of  a  notice  appointing  the  first  district  meeting  be- 
fore the  expiration  of  three  months  after  notice  in  writing  to  the 
trustees  of  the  districts  from  which  such  new  district  was  taken, 
said  trustees  not  having  consented  to  the  alterations  made  in  their 
respective  districts. 

By  John  A.  Dix,  June  29,  1837.  By  1  R.  S.  sec.  55,  page 
477,  the  commissionera  of  common  schools  are  required,  whenever 


SUPERINTENDENT    OP   COMMON    SCHOOLS.  359 

a  school  district  is  formed  by  them,  to  prepare  a  notice  in  writing, 
within  twenty  days  thereafter,  describing  such  district  and  ap- 
pointing a  time  and  place  for  the  first  district  meeting,  and  to  de- 
liver such  notice  to  a  taxable  inhabitant  of  the  district. 

By  1  R.  S.  sec.  22,  page  471,  it  is  provided  that  "no  alteration 
of  any  school  district,  made  without  the  consent  of  the  trustees 
thereof,  shall  take  effect  until  three  months  after  notice  in  writing 
shall  be  given  by  the  commissioners  to  some  one  or  more  of  such  j 
trustees."  i# 

These  two  provisions  must,  if  possible,  be  so  construed  that 
lx)th  may  stand ;  and  in  this  there  is  no  difficulty.  If  an  alte- 
ration is  made  in  one  or  more  existing  districts,  without  the  con- 
sent of  trustess,  it  cannot  take  effect  until  three  months  after  no- 
tice in  writing  to  the  trustees,  &c.  The  formation  of  a  new 
district  necessarily  involves  an  alteration  of  existing  districts,  ex- 
cepting those  uncommon  cases  in  which  school  districts  are  form- 
ed out  of  territory  previously  unsettled,  and  for  want  of  inhabi- 
tants not  included  within  the  boundaries  of  any  district.  In  these 
cases  the  commissioners  may  issue  their  notice  for  the  first  dis- 
trict meeting,  which  may  be  held  after  the  expiration  of  six  days, 
if  the  notice  is  immediately  served.  But  if  a  new  district  is  form- 
ed out  of  territory  included  in  existing  districts,  so  as  to  alter  the 
latter,  and  the  trustees  do  not  consent  to  such  alteration,  it  can- 
not take  effect  until  three  months  after  notice  in  writing,  <fcc. 
In  the  appUcation  of  this  rule  the  Superintendent  has  decided 
that  no  act  touching  the  organization  of  the  new  district  is  valid 
if  done  before  the  expiration  of  the  three  months,  so  that  an 
election  before  that  time  has  expired  would  be  void  for  want  of 
authority. 

Notwithstanding  this  decision  the  commissioners  should  issue 
their  notice  for  the  first  district  meeting  within  twenty  days  after 
the  district  is  formed ;  but  the  time  appointed  for  the  meeting 
must  be  at  some  period  subsequent  to  the  expiration  of  three 
months  after  notice  in  writing  to  the  trustees  of  the  district  or 
districts  from  which  it  is  taken.  It  is  hardly  necessary  to  say,  that 
if  the  trustees  of  the  altered  districts  consent,  the  new  district 
may  organize  immediately,  in  the  same  manner  as  though  it 
had  been  formed  out  of  territory  not  previously  attached  to  any  . 
district. 

The  provisions  above  quoted  with  regard  to  the  notice  to  be 
given  by  the  commissioners  may  be  violated  in  three  modes. 

1.  The  commissioners  may  neglect  to  issue  their  notice  with- 
in twenty  days: 

2.  They  may  issue  it  within  twenty  days,  and  appoint  the  time 
for  the  first  district  meeting  before  the  expiration  of  three  months : 


-V  i>- 


360  -"*  ^    CASES    DECIDED    BY   THE 

3.  They  may  issue  a  notice  which  is  in  some  matter  of  form 
defective. 

1.  If  the  commissioners  do  not  issue  any  notice  within  twenty 
days  they  may  perform  the  duty  at  a  subsequent  time,  as  the 
provision  of  law  requiring  them  to  do  it  within  that  time  is  direc- 
tory only;  and  if  the  duty  is  neglected  it  should  be  subsequently 
performed,  so  that  third  persons  may  sustain  no  injury.  This  is 
the  general  rule  of  law,  where  the  authority  of  the  officer  is  not 
intended  to  be  limited  by  the  specification  of  time,  and  it  appears 
to  me  to  be  applicable  to  this  case. 

2.  If  the  notice  for  the  first  meeting  in  the  new  district  is  issued 
within  twenty  days,  and  the  time  appointed  for  the  meeting  is 
within  three  months,  and  the  trustees  have  not  consented  to  the 
alteration,  the  notice  is  void.  It  appoints  a  day  in  violation  of  an 
express  prohibition  of  the  statute.  It  is,  in  contemplation  of  law. 
no  notice  at  all;  and  the  commissioners  may  issue  another,  pre- 

■k'  wisely  as  though  they  had  issued  none. 
'  3.  If  the  notice  does  not  on  its  face  show  a  direct  yiolation  of 
the  statute,  but  is  defective  in  some  matter  of  form,  application 
may  be  made  to  the  Superintendent  for  authority  to  amend  it. 
Having  issued  an  order  which  is  not  void,  the  commisioners  can- 
not issue  another  without  being  empowered  to  do  so  by  the  pro- 
per authority ;  although  they  may  doubtless  rescind  their  order 
fcMT  the  formation  of  the  new  district  and  commence  anew. 


-M 


APPENDIX.     ^         ^ 


LAWS  3^'"^ 

RBLATIMa  TO 


COMMON  SCHOOLS, 

AND  THE  *     :        ■  *• 

FORMS  AND  REGULATIONS 

PRESCRIBED  FOR  THEIR  GOVERNMENT. 


>, 


[This  edition  of  the  Statutes  relating  to  Common  Schools,  is  in 
conformity  to  an  edition  of  the  Revised  Statutes  of  the  state,  with 
the  amendments  thereto,  recently  published  by  the  Revisers.  Some 
of  the  sections  have  double  numbers.  In  every  such  case,  the  last 
number  refers  to  the  original  edition  of  the  Revised  Statutes.  In 
the  annexed  Forms  and  Regulations,  the  numbers  of  the  sections 
as  given  in  the  present  edition  are  referred  to ;  but  the  foregoing 
Decisions  of  the  Superintendent  refet  to  the  numbers  of  the  sections 
in  the  original  edition.  The  Decisions  also  refer  to  the  pages  of 
the  original  edition  of  the  Revised  Statutes,  which  are  shown  by 
the  figures,  with  asterisks  annexed,  on  the  margins  of  the  follow- 
ing pages.] 


^  V 


-#. 


LAWS 

REVISED  STATUTES  ^  .#•» 


\ 


KXLATING  TO 


COMMON  SCHOOLS, 

^  TITLE   II.    CHAPTER   XV. 


TITLE  II. 

OF  COMMON  SCHOOLS. 


Art.  1. — Of  the  powers  and  duties  of  the  superintendent  of  common 

schools,  and  of  the  apportionment  of  school  moneys.  • 

Art,  2.  —Of  the  distribution  of  the  common  school  fund. 

Art.  3. — Of  the  powers  and  duties  of  the  commissioners  of  common  i'  • 

schools. 

Art.  4. — Of  the  inspectors  of  common  schools. 

Art.  5. — Of  the  formation  of  school  districts,  and  of  the  choice,  du- 
ties and  powers  of  their  officers. 

Art.  6. — Of  certain  duties  of  the  county  clerk. 

ARTICLE  FIRST.^ 

Of  the  Powers  and  duties  of  the  Superintendent  of 
Commoti  Schools,  and  of  the  Apportionment  of  ^  ^ 

School  Moneys. 

Sbc.  1.  Superintendent  must  make  annual  report  to  the  legisl^iture;  eoa- 
lenis  thereof. 

2.  When  school  moneys  to  be  apportioned. 

3.  How  apportionment  to  be  made.  */ 

4.  How  an  increase  apportioned. 

5.  How  apportionment  made  when  census  defective. 

6.  New  apportionment  to  be  made  in  certain  cases,  and  how. 

7.  Apportionment  to  be  certified,  and  notice  to  be  given.  W  .'  . 

8.  Superintendent  to  prepare  forms  and  instructions,  and  transmit  "^  ^' 

them  to  officers.  "^  . » 

9.  Six  first  Articles  of  this  Title  to  be  printed  and  distributed. 

10.  Reasonable  expenses  of  superintendent  to  be  paid  out  of  treasury. 

*g  1.  There  shall  continue  to  be  a  superintendent  of   ^  46t 
common  schools,  whose  duty,  amongst  other  things,  it  ues"*? ^^. 
shall  be,  to  prepare  and  submit  an  annual  report  to  the  m'endent. 
legislature  containing, 

1.  A  statement  of  the  condition  of  the  common  schools 
of  the  state : 

2.  Estimates  and  accounts  of  expenditures  of  the 
school  moneys :  . 


364 


LAWS    RELATING   TO 


Apportion 
merit. 


Ratio. 


Increase. 


Proceeding 
when  cen- 
sus defec- 
tive. 


When  town 
aUered. 


Hf 


%  468 


Certificate 
and  notice. 


3.  Plans  for  the  improvement  and  management  of 
the  common  school  fund,  and  for  the  better  organization 
of  the  common  schools ;  and, 

4.  All  such  matters  relating  to  his  office,  and  to  the 
common  schools,  as  he  shall  deem  expedient  to  commu- 
nicate. 

^  2.  In  every  year,  immediately  follow^ing  a  year  in 
which  a  census  of  the  population  of  this  state  shall  have 
been  taken,  under  the  authority  of  the  state,  or  of  the 
United  States,  the  superintendent  shall  apportion  the 
school  moneys  to  be  annually  distribu tea,  amongst  the 
several  counties  of  the  state,  and  the  share  of  each  coun- 
ty, amongst  its  respective  towns  and  cities. 

§  3.  Such  apportionment  shall  be  made  among  the 
several  towns  and  cities  of  the  state,*  according  to  the  ratio 
of  their  population  respectively,  as  compared  with  the 
population  of  the  whole  state,  according  to  the  last  pre- 
ceding census. 

^  4.  [Sec.  5.]  If  an  increase  of  the  school  moneys  to 
be  distributed,  shall  take  place  in  any  other  year,  than 
one  immediately  following  a  census,  the  superintendent 
shall  apportion  such  increase  amongst  the  several  coun- 
ties, cities  and  towns,  according  to  the  ratio  of  the  ap- 
portionment then  in  force. 

§  5.  [Sec.  6.]  When  the  census,  or  returns,  upon 
which  an  apportionment  is  to  be  made,  shall  be  so  far 
defective,  in  respect  to  any  county,  city,  or  town,  as  to 
render  it  impracticable  for  the  superintendent  to  ascer- 
tain the  share  of  school  moneys,  which  ought  then  to  be 
apportionment  to  such  county,  city,  or  town,  he  shall  as- 
certain, by  the  best  evidence  in  his  power,  the  facts  up- 
on which  the  ratio  of  such  apportionment  shall  depend, 
and  shall  make  the  apportionment  accordingly. 

g  6.  [Sec.  7.]  Whenever,  in  consequence  of  the  di- 
vision of  a  town,  or  the  erection  of  a  new  town,  in  any 
county,  the  apportionment  then  in  force  shall  become 
unjust,  as  between  two  or  more  of  the  towns  of  such 
county,  the  superintendent  shall  make  a  new  apportion- 
ment of  •the  schoolmoneys,  next  to  bedistributed  amongst 
such  towns,  a.scertaining  by  the  best  evidence  in  his 
power,  the  facts  upon  which  the  ratio  of  apportionment, 
as  to  such  towns,  shall  depend. 

^  7.  I  Sec.  8.]  The  superintendent  shall  certify  each 
apportionment  made  by  him,  to  the  comptroller,  and  shall 

(1)  Amendatory  act  of  1830,  chap.  320,  §  5,  and  by  §  6  of  same  ch.  the 
orig.  §  4  is  repealed. 


■■^^9^- 


COMMON   SCHOOLS.     --  365 

give  immediate  notice  thereof,  to  the  clerk  of  each  coun- 
ty interested  therein,  and  to  the  clerk  of  the  city  and  ••» 
county  of  New- York  ;  stating  the  amount  of  moneys  ap- 
portioned to  his  county,  and  to  eacli  town  and  city  there- 
in, and  the  time  when  the  same  will  be  payable  to  the 
treasurer  of  such  county,  or  to  the  chamberlain  of  the 
city  of  New- York. 

§  8.  fSec.  9.]  The  superintendent  shall  prepare  sUi-  R^guiaMoM- 
table  forms  and  regulations  for  making  all  reports,  and 
conducting  all  necessary  proceedingt!,  under  this  Title,       a 
and  shall  cause  the  same,  with  such  instructions  as  he  ^ 

shall  deem  necessary  and  proper,  for  the  better  organiza- 
tion and  government  of  common  schools,  to  be  trans- 
mitted to  the  officers  required  to  execute  tlie  provisions 
of  this  Title  throughout  the  state. 

^  9.  [Sec.  10.]  He  shall  cause  so  many  copies  of  thecenain  arti- 
first  six  Articles  of  this  Title,  with  the  forms,  regula-  printed. " 
tionsand  instructions  prepared  by  him,  thereto  annexed, 
to  be,  from  time  to  time,  printed  and  distributed  amongst 
the  several  school  districts  of  the  state,  as  he  shall  deem 
the  public  good  to  require. 

^10.  [Sec.  11.]  All  moneys  reasonably  expended  by  Expenses 
him,  in  the  execution  of  his  duties,  shall,  upon  due 
proof,  be  allowed  to  him  by  the  comptroller,  and  be  paid 
out  of  thQ  treasury.  -  *|F' 

ARTICLE  SECOND. 

Of  the  distHhution  of  the  Common  School  Fund. 

•■      Sec.  11.  When  school  moneys  to  be  paid;  how;  to  whom. 

12.  To  be  applied  for  as  soon  as  payable. 

13.  County  treasurer  to  give  notice  to  commissioners  of  common 
^  sciiuols. 

t  14.  Duty  of  treasurer  if  moneys  are  not  applied  for. 

B  15.  Duty  of  clerk  of  county  on  receiving  notice  of  apportionment.  *  - 

a  15.  A  sum  equal  to  tliat  apportioned,  to  be  raised  in  each  town.  »•         vf^  * 

17.  To  be  paid  to  commissioners  of  common  schools.  "         *  '*' 

18.  If  no  commissione's,  to  he  paid  to  treasurer.  - '  ■  , 

g  11.  [Sec.  12.J  The  sum  annually  to  be  distributed  ^^^"«"P'^''  ' 
for  the  encouragement  of  common  schools,  shall  be  paid 
on  the  first  day  of  February,  in  every  year,  on  tlie  war- 
rant of  the  comptroller,  to  the  treasurers  of  the  several  ^ 
counties,  and  the  chamberlain  of  the  city  of  New- York.       ^ 

^  12.  [Sec.  13.]  The  treasurer  of  each  county,  and  Treasurer  to 
the  chamberlain  of  the  city  of  New- York,  shall  apply  ^^^^^' 
^,  for  and  receive  the  school  moneys  apportioned  to  their  re- 
spective counties,  as  soon  as  the  same  become  payable. 

*^  13.  [Sec.  14]  Each  treasurer  receiving  such  mo-^^*.*®® 
:neys,  shall  give  notice,  in  writing,  to  some  one  or  raoretice. 
of  the  commissioners  of  common  schools  of  each  town 


II 


366 


'^      LAWS    RELATING    TO 


i 


inainip-c  how 
dtef>'>»e<l  of. 


County 

Blerlc. 


■  W^ 


or  city  iri  his  county,  of  the  amount  apportioned  to  met 
town  or  city,  and  shall  hold  the  same  subject  to  the  or- 
der of  such  commissioners. 
MotMj*  r»-  g  14.  [Sec.  15.]  In  case  the  commissioners  of  any 
such  city  or  town  shall  not  apply  for  and  receive  such 
moneys,  or  in  case  there  are  no  commissioners  appointed 
in  the  same,  before  the  next  receipt  of  moneys  apportion- 
ed to  the  county,  the  moneys  so  remaining  with  the  trea- 
surer shall  be  retained  by  him,  and  be  added  to  the  mo- 
neys next  received  by  him  for  distribution  from  the  su- 
perintendent of  common  schools,  and  be  distributed 
tlierewith,  and  in  the  same  proportion. 

^  15.  [Sec.  16.]  Whenever  the  clerk  of  any  county 
shall  receive  from  the  superintendent  of  common  schools 
notice  of  the  apportionment  of  moneys  to  be  distributed 
in  the  county,  he  shall  file  the  same  in  his  office,  and 
transmit  a  certified  copy  thereof  to  the  county  treasurer, 
and  to  the  clerk  of  the  board  of  supervisors  of  the  coun- 
ty; and  the  clerk  of  the  board  of  supervisors  shall  lay 
such  copy  before  the  supervisors  at  their  next  meeting. 

^  16.  [Sec.  17.]  It  shall  be  the  duty  of  the  supervi- 
sors, at  such  meeting,  and  at  every  annual  meeting 
thereafter,  to  add  to  the  sums  of  money  to  be  raised  on 
each  of  the  towns  of  the  county,  for  defraying  the  ne- 
cessary expenses  thereof,  a  sum  equal  to  the  school  mo- 
neys which  shall  have  been  apportioned  to  such  town ; 
which  moneys,  so  added,  together  with  the  fees  of  the 
collector,  shall  be  levied  and  collected  in  the  same  man- 
ner as  other  moneys  directed  to  be  raised  in  the  town. 

^  17.  [Sec.  18.]  Tile  supervisors  shall  cause  and  re- 
quire the  collector  of  each  town,  by  their  warrant  to  him, 
to  pay  the  moneys  so  added,  when  collected,  retaining 
his  fees  for  collection,  to  some  one  or  more  of  the  com- 
missioners of  common  schools  in  such  town,  for  the  use 
of  common  schools  therein  ;  whose  receipt  therefor  shall 
be  sufficient  evidence  of  such  payment. 

g  18.  [Sec.  19.]  If  there  shall  not  be  any  commission- 


Duly  <>( 

board  of  sn 
pervisora. 


i'^vrr 


When  mo- 

pafa  to  ir!a  ©rs  of  commoH  schools  in  such  town  when  the  moneys 

•*^**^-         are  collected,  the  collector  shall  pay  the  same,  retaining 

his  fees  for  collection,  to  the  county  treasurer,  to  be  by 

him  apportioned  among  the  several  cities  and  towns  in 

.  the  county,  and  distributed  in  the  manner  provided  in 

Xihe  fifteenth  [14th]  section  of  this  Title. 


^ 


cohmon  ^sffUDots . 


28. 


29. 

30. 


\i 


.  '^ 


•ARTICLE  THIRD. 

Of  the  Powers  and  Duties  of  the  Commissioners  of 
Commoii  Schools. 

Sec.  19.  Enumeration  of  certain  duties  of  the  commissioners. 

20.  Commissioners  when  to  form  and  alter  districts,  in  two  or  mofs 

towns. 

21.  When  to  take  effect,  if  trustees  do  not  consent. 

22.  2.3  &  24.  In  what  cases  apportionment  of  school  moneys  not  to 

be  made. 
25  &  26.  In  what  cases  commissioners  to  make  new  ap]>ortionment. 
27.  What  commissioners  to  do  with  moneys  remaining  m  their  hands, 
in  certain  cases. 
Moneys  remaining  two  years,  in  certain  cases,  to  be  returned  to 

treasurer. 
Commissioners  to  make  annual  report  to  county  clerk;  contents. 
If  report  not  made,  county  clerk  to  give  notice  to  clerk  of  town. 

31.  Commissioners  to  forfeit  $10;  moneys  for  next  year  may  be  with- 

held. 

32.  If  moneys  lost  to  town,  commissioners  to  forfeit  full  amount. 

33.  Supervisor  of  town  to  prosecute. 

34.  Commissioners  to  keep  account  of  moneys;  to  whom  submitted. 

35.  Must  give  account  of  moneys  to  successors ;  to  be  filed. 

36.  If  balance  remain,  it  must  be  paid  forthwith. 

37.  If  balance  appropriated,  it  must  be  stated  and  paid  accordingly. 

38.  For  breach  of  any  provision  of  three  last  sections,  penalty  of 

$100. 

39.  Successors  to  prosecute  for  forfeiture. 

40.  Successors  may  bring  suit  for  unpaid  balance. 

41.  If  commissioner  dead,  suit  may  be  brought  against  his  represen- 

tatives. 

42.  Commissioners  have  powers  of  a  corporation  to  certain  extent. 

43.  Town  clerk,  clerk  of  commissioners;  his  duty. 

^19.  [Sec.  20.]  It  shall  be  the  duty  of  the  commis- 
sioners of  common  schools,  in  each  town, 

1.  To  divide  their  town  into  a  convenient  number  of 
school  districts,  and  to  regulate  and  alter  such  districts 
as  hereinafter  provided : 

2.  To  set  off  by  itself  any  neighborhood  in  their  town 
adjoining  to  any  other  state  of  this  Union,  where  it  has 
been  usual,  or  shall  be  found  convenient  for  such  neigh- 
borhood to  send  their  children  to  a  school  in  such  adjoin- 
ing state : 

3.  To  describe  and  number  the  school  districts,  and 
to  deliver  the  description  and  numbers  thereof,  in  writ- 
ing, to  the  town  clerk,  immediately  after  the  formation 
Of  alteration  thereof: 

4.  To  deliver  to  such  town  clerk  a  description  of  each 
neighborhood,  adjoining  to  any  other  state,  set  off  by  itself: 

5.  To  apply  for  and  receive  from  the  county  treasurer, 
all  moneys  apportioned  for  the  use  of  common  schools 
in  their  town,  and  from  the  collector  of  the  town,  all 
moneys  raised  therein  for  the  same  purpose,  as  soon  as 
such  moneys  shall  become  payable,  or  be  collected. 

6.  To  apportion  the  school  moneys  received  by  them, 
OB  the  first  Tuesday  of  April,  in  each  year,  among  the 


367 

*470 


1^ 


-^ 


368 


LAWS    RELATING    TO 


«4T1 


[See  Chap. 
U.  Part  I, 
Title  6.] 

Districta 
from  several 
towns. 


Consent  of 
trustees. 


When  mo- 
ueys  with- 
held. 


II.. 


*. 


several  school  districts,  parts  of  districts,  and  neighbor- 
hoods separately  set  off,  within  their  town,  in  proportion 
to  the  number  of  children  residing  in  each,  over  the  age 
of  five,  and  under  that  of  sixteen  years,  as  the  same  shall 
have  appeared  from  the  last  annual  reports  of  their  re 
spective  trustees : 

7.  If  the  commissioners  shall  have  received  the  school 
moneys  of  their  town,  and  all  the  reports  from  the  seve- 
ral school  districts  therein,  before  the  first  Tuesday  of 
April,  they  shall  apportion  such  moneys  *as  above  direct- 
ed, within  ten  days,  after  receiving  all  of  the  said  re- 
ports and  the  said  moneys  : 

8.  To  sue  for  and  collect,  by  their  name  of  office,  all 
penalties  and  forfeitures  imposed  in  this  Title,  and  in 
respect  to  which  no  other  provision  is  made,  which  shall 
be  incurred  by  any  officer  or  inhabitant  of  their  town : 
and  after  deducting  their  costs  and  expenses,  to  add  the  , 
sums  recovered,  to  the  school  moneys  received  by  theiH, ' 
to  be  apportioned  and  paid  in  the  same  manner.' 

^  20.  [Sec.  21. J  Whenever  it  may  be  necessary  or 
convenient,  to  form  a  district  out  of  two  or  more  adjoin-  , 
ing  towns,  the  commissioners  from  each  of  such  adjoin- 
ing towns,  or  the  major  part  of  them,  may  form,  regu- 
late and  alter  such  district. 

^21.  [Sec.  22. j  No  alteration  of  any  school  distjict, 
made  without  the  consent  of  the  trustees  thereof,  shall 
take  effect  until  three  months  after  notice,  in  writing, 
shall  be  given  by  the  commissioners,  to  some  one  or  more 
of  such  trustees. 

§  22.  [Sec.  23.]  In  making  the  apportionment  of  mo- 
neys among  the  several  school  districts,  no  share  shall  be 
allotted  to  any  district,  part  of  a  district,  or  separate  neigh- 
borhood, from  which  no  sufficient  annual  report  shall 
have  been  received,  for  the  year  ending  on  the  last  day 
of  December,  immediately  preceding  (he  apportionment. 

g  23.  [Sec.  24.]  No  moneys  shall  be  apportioned  and 
paid  to  any  district  or  part  of  a  district,  unless  it  shall 
appear  by  such  report,  that  a  school  had  been  kept  there- 
in for  at  least  three  months,  during  the  year  ending  at 
the  date  of  such  report,  by  a  qualified  teacher ;  and  that 
all  moneys  received  from  the  commissioners  during  that 
year,  have  been  applied  to  the  payment  of  the  compen- 
sation of  such  teacher. 

(1)  Laws  of  1819,  p.  192,  and  p.  194,  §  12  to  15.  By  laws  of  18-29,  chap. 
287,  the  commissioners  are  also  to  take  charge  of  the  "  Common  School 
Fund"  of  their  town,  created  by  a  vote  appropriating  surpliis  poor  moneys. 
See  Chap.  11,  Pan  I,  Title  6,  for  thia  acU 


^ 


-#■* 


1 


COMMON   SCHOOLS.  369 


^  24.  [Sec.  25.]  No  part  of  such  moneys  shall  be  ap-  ^J;**; 
)itioned  or  paid  to  any  separate  neighborhood,  unless  it  hew. 


,  When  a\o- 
nnys  with- 

port' 

shall  appear  from  the  report  of  its  trustee,  that  all  mo- 
neys received  by  him  from  the  commissioners,  during 
the  year  ending  at  the  date  of  such  report,  have  been 
faithfully  appHed,  in  paying  for  the  instruction  of  child- 
ren residing  in  such  neighborhood.  ^ 
S  25.  [Sec.  26.]-If  after  the  annual  reports  of  the  dis-  -^Iporticn- 

•  1     if*i  1     '•  •       1  1  t     r  ^  •         merit  to  dis- 

tricts shalfhave  been  received,  and  before  the  apportion- trictaiterad 

ment  of  the  school  moneys  shall  have  been  made  by  the  M^rt!"""" 
commissioners,  a  district  shall  be  duly  altered,  or  a  new 
district  be  formed  in  the  town,  so  as  to  render  an  appor- 
tionment founded  solely  on  the  annual  reports,  unjust, 
as  between  two  or  more  districts  of  the  town,  the  com- 
missioners shall  make  an  apportionment  among  such 
districts,  according  to  the  number  of  children  in  each, 
over  the  age  of  five  and  under  sixteen  years,  ascertain- 
ing that  number  by  the  best  evidence  in  their  power. 

^26.  The  provisions  of  the  twenty-sixth  section  of  Last  section 
Article  third.  Title  second  of  Chapter  fifteen  of  thoofh^caee^. 
First  Part  of  the  Revised  Statutes,  are  hereby  extended 
to  all  cases  where  a  school  district  shall  have  been  form- 
ed at  such  time  previous  to  the  first  day  of  January,  as 
not  to  have  allowed  a  reasonable  time  to  have  kept  a 
school  therein  for  the  term  of  three  months,  such  district 
having  been  formed  out  of  a  district  or  districts  in  which 
a  school  shall  have  been  kept  for  three  months,  by  a 
teacher  duly  qualified,  during  the  year  preceding  the 
first  day  of  January.^ 

*^  27.  All  moneys  apportioned  by  the  commissioners,    *  412 
to  the  trustees  of  a  district,  part  of  a  district,  or  separate  ^e°a"r"uf  ""^^ 
neighborhood,  which  shall  have  remained  in  the  hands  hands  of 
01  the  commissioners  for  one  year  after  such  apportion-  ^rs. 
ment,  by  reason  of  tlie  trustees  neglecting  or  refusing  to 
receive  the  same,  shall  be  added  to  the  moneys  next  there- 
after to  be  apportioned  by  the  commissioners,  and  shall 
be  apportioned  and  paid  therewith,  in  the  same  manner. 

^  28.  In  case  any  school  moneys  received  by  the  com-  whenro- 
missioners,  can  not  be  apportioned  by  them,  for  the  term  treasurer. 
of  two  years,  after  the  same  are  received,  by  reason  of      „'? 
the  non-compliance  of  all  the  school  districts  in  their  ^' 

town  with  the  provisions  of  this  Title,  such  moneys  shall 
be  returned  by  them  to  the  county  treasurer,  to  be  by 
him  apportioned  and  distributed,  together  and  in  the 

— *--  (I)  Laws  1831,  chap.  206,  §  1. 

24 


370  LAWS    RELATING   TO 

same  manner  with  the  moneys  next  thereafter  to  be  re- 
ceived by  him,  for  the  use  of  common  schools. 
Annual  re-  ^  29.  It  shall  be  the  duty  of  the  commissioners  in 
Swione^*'  cach  town,  between  the  first  day  of  July  and  the  first 
day  of  August'  in  each  year,  to  make  and  transmit  to  the 
county  clerk,  a  report  in  writing,  bearing  date  on  the  first 
day  of  July,  in  the  year  of  its  transmission,  and  stating, 

1.  The  whole  number  of  school  districts  and  neigh- 
borhoods, separately  set  off  wiUiin  their  town : 

2.  The  districts,  parts  of  districts,  and  neighborhoods, 
from  which  reports  shall  have  been  made  to  the  commis- 
sioners, or  their  immediate  predecessors  in  oflfice,  within 
the  time  limited  for  that  purpose : 

8.  The  length  of  time  a  school  shall  have  been  kept 
in  each  of  such  dfetricts  or  parts  of  districts,  distinguish- 
ing what  portion  of  that  time,  the  school  shall  have  been 
kept  by  quaUfied  teachers. 

4.  The  amount  of  public  moneys  received  in  each  of 
such  districts,  parts  of  districts  and  neighborhoods: 

5.  The  number  of  children  taught  in  each,  and  the 
number  of  children  over  the  age  of  five  and  under  six- 
teen years,  residing  in  each : 

6.  The  whole  amount  of  moneys  received  by  the  com- 
missioners, or  their  predecessors  in  office,  during  the  year 
ending  at  the  date  of  their  report,  and  since  the  date  of 
their  last  preceding  report ;  distinguishing  the  amount 
received  from  the  county  treasurer,  from  the  town  col- 
lector, and  from  any  other  and  what  source : 

7.  The  manner  in  which  such  moneys  have  been  ex- 
pended, and  whether  any,  and  what  part  remains  un- 
expended, and  for  what  cause. 

County  ^  30.  In  case  the  commissioners  in  any  town  shall 

no^ce!*^^^  not,  on  or  before  the  first  day  of  August,'  in  any  year, 

make  such  report  to  the  clerk  of  the  county,  it  shall  be 

his  duty  to  give  immediate  notice  of  such  n^lect  to  the 

clerk  of  such  town. 

Fo**tufe:      *S  ^l-  The  Commissioners  neglecting  to  make  such 

raoneymay  report  withiu  the  limited  period,  shall  forfeit  severally, 

'  to  their  town,  for  the  use  of  the  common  schools  therein, 

the  sum  of  ten  dollars ;  and  the  share  of  school  moneys 

apportioned  to  such  town  for  the  ensuing  year,  may,  in 

the  discretion  of  the  superintendent  of  common  schools, 

be  withheld,  and  be  distributed  anwng  the  other  towns 

in  the  same  cwinty,  from  which  the  necessary  reports 

shall  have  been  received. 

(1)  Augiut  inwrted  by  §  1  of  chap.  308,  laws  of  1835, 


COMMON   SCHOOLS.  37l 


com- 
missioners 


§  32.  When  the  share  of  school  moneys  apportioned  ^^^l_ 
to  a  town,  shall  thus  be  lost  to  the  town,  by  the  neglect  liable  "for" 
of  its  commissioners,  the  commissioners  guilty  of  such  ^^  ' 
neglect,  shall  forfeit  to  their  town  the  full  amount,  with 
interest,  of  the  moneys  so  lost ;  and  for  the  payment  of 
such  forfeiture  they  shall  be  jointly  and  severally  liable.  ^■ 

§  33.  It  shall  be  the  duty  of  the  supervisor  of  the  superv^^j^^ 
town,  upon  notice  of  such  loss,  from  the  superintendent  ac^****^" 
of  common  schools  or  county  treasurer,  to  prosecute  with- 
out delay,  in  the  name  of  the  town,  for  such  forfeiture, 
and  the  moneys  recovered,  shall  be  distributed  and  paid 
by  such  supervisor  to  the  several  districts,  parts  of  dis- 
tricts, or  separate  neighborhoods  of  the  town,  in  the 
same  manner  as  it  would  have  been  the  duty  ol  the  com- 
missioners to  have  distributed  and  paid  them,  if  received 
from  the  county  treasurer. 

^  34.  The  commissioners  in  each  town,  shall  keep  a  ^n™^*^ 
just  and  true  account  of  all  school  moneys  received  and  keep  ac- 
expended  by  them  during  the  year  for  which  they  shall  *^°"" 
have  been  chosen,  and  shall  lay  the  same  before  the 
board  of  auditors  of  the  accounts  of  other  town  officers 
at  the  annual  meeting  of  such  board  in  the  same  year. 

i5  35.  The  commissioners  of  common  schools  in  each  ^"'^  renoer 
town,  shall,  withm  fifteen  days  after  the  termination  of  sors. 
their  respective  offices,  render  to  their  successors  in  of- 
fice, a  just  and  true  account,  in  writing,  of  all  school 
moneys  by  them  respectively  received,  before  the  tinne  of 
rendering  such  account,  and  of  the  manner  in  which 
the  same  shall  have  been  appropriated  and  expended  by 
them ;  and  the  account  so  rendered  shall  be  delivered  by 
such  successors  in  office  to  the  town  clerk,  to  be  filed  and 
recorded  in  his  office. 

^  36,  If,  on  rendea-ing  such  account,  any  balance  shall  biian^ 
be  found  remaining  in  the  hands  of  the  commissioners, 
or  any  of  them,  the  same  shall  immediately  be  paid  by 
him  or  them,  to  his  <x  their  successors  in  office,  or  some 
one  of  them. 

§  37.  If  such  balance,  or  any  part  thereof,  shall  have  [e^^fo^bf '*' 
been  appropriated  by  the  commissioners  to  any  particu-  paid  accord- 
lar  school  district,  part  of  a  district,  or  separate  neigh- "^^' 
borhood,  and  shall  remain  in  their  hands  for  the  use 
thereof,  a  ^ateraent  of  such  appropriation  shall  Ije  made 
*in  the  account  so  to  be  rendered,  and  the  balance  paid    *  *"'* 
to  such  successors  in  office,  shall  be  paid  over  by  them,  -j^ 

according  to  such  appropriation.  -^ 

§  38.  Every  commissioner  of  common  schools,  who  f°J^^^^^i^ 


372 


LAWS    RELATING   TO 


Successors 
to  prosecute 


Suit  how 
brought. 


II*, 


shall  refuse  or  neglect  to  render  such  an  account  as  is 
above  required,  or  who  shall  refuse  or  neglect  to  pay 
over  to  his  successors  in  office,  any  balance  so  found  in 
his  hands,  or  to  deliver  a  statement  of  the  appropriation, 
if  any  there  be,  of  such  balance,  shall  for  each  offence,  for- 
feit the  sum  of  one  hundred  dollars. 

^  39.  It  shall  be  the  duty  of  such  successors  in  office, 

*  to  prosecute  without  delay,  in  their  name  of  office,  for 

the  recovery  of  such  forfeiture,  and  to  distribute  and  pay 

the  moneys  recovered,  in  the  same  manner  as  other 

school  moneys  received  by  them. 

§  40.  Such  successors  in  office  may  bring  a  suit  in 
their  name  of  office,  for  the  recovery,  with  interest,  of 
any  unpaid  balance  of  school  moneys,  that  shall  appear 
to  have  been  in  the  hands  of  any  previous  commissioner 
on  leaving  his  office,  either  by  the  accounts  rendered  by 
such  commissioner,  or  by  other  sufficient  proof 

^41.  In  case  of  the  death  of  such  commissioner, 
such  suit  may  be  brought  against  his  representatives,  and 
all  moneys  recovered  shall  be  applied  in  the  same  man- 
ner as  if  they  had  been  paid  over  without  suit. 
Corporation.  §  42.  The  Commissioners  of  common  sshools  in  each 
town,  shall  have  the  powers  and  privileges  of  a  corpo- 
ration, so  far  as  to  enable  them  to  take  and  hold  any 
property  transferred  to  them  for  the  use  of  common 
schools  in  such  town. 

^  43.  The  town  clerk,  by  right  of  office,  shall  be  the 
clerk  of  the  commissioners  of  common  schools  in  each 
town,  and  it  shall  be  his  duty, 

1 .  To  receive  and  keep  all  reports  made  to  the  com- 
missioners from  the  trustees  of  school  districts,  and  all 
the  books  and  papers  belonging  to  the  commissioners, 
and  to  file  them  in  his  office : 

2.  To  attend  all  meetings  of  the  commissioners,  and 
to  prepare,  under  their  direction,  all  their  reports,  esti- 
mates and  apportionments  of  school  money,  and  to  re^ 
cord  the  same  and  their  other  proceedings,  in  a  book  to 
be  kept  for  that  purpose : 

3.  To  receive  all  such  communications  as  may  be  di- 
rected to  him  by  the  superintendent  of  common  schools, 
and  to  dispose  of  the  same  in  the  manner  directed 
therein : 

4.  To  transmit  to  the  clerk  of  the  county,  all  such 
reports  as  may  be  made  for  such  clerk,  by  the  commis- 
sioners : 

*  473        *5.  To  call  together  the  commissioners,  upon  receiv- 


Clerlc  of 
commis- 
sioners ; 
his  duty. 


COMMON   SCHOOLS.  373 

ing  notice  from  the  county  clerk  that  they  have  not  made  ^ 

their  annual  report,  for  the  purpose  of  making  such  re- 
port: 

And  generally  to  do  and  execute  all  such  things  as 
belong  to  his  office,  and  may  be  required  of  him  by  the 
commissioners. 

ARTICLE  FOURTH. 

Of  the  Inspectors  of  Common  Schools. 

Sec.  44.  Who  inspectors  of  common  schools  in  each  town. 

45.  To  examine  persons  offering  themselves  as  teachers. 

46.  Qualifications  to  be  required. 

47.  If  satisfied,  to  give  certificate. 

48.  May  annul  certificate  after  ten  days'  notice. 

49.  May  require  re-examination. 

50.  How  effect  given  to  the  annulling  of  a  certificate. 

51.  In  certain  cases,  inspectors  of  ivvo  or  more  towns  may  examine. 

52.  Inspectors  to  visit  schools  at  leftst  once  a  year. 

53.  Duties  at  such  visitation. 

54.  Each  inspector  may  have  assigned  to  him  certain  districts. 

§  44.  The  commissioners  of  common  schools  in  each  whoinspec- 
towUj  together  with  the  other  inspectors  elected  in  their  ""'®' 
town,  shall  be  the  inspectors  of  common  schools  for  their 
town. 

^  45.  It  shall  be  the  duty  of  the  inspectors  of  com-  Their  duiy, 
mon  schools  in  each  town,  or  any  three  of  them,  at  a  |^s.°  "'^^^^ 
meeting  of  the  inspectors  called  for  that  purpose,  to  ex- 
amine all  persons  offering  themselves,  as  candidates  for 
teaching  common  schools  in  such  town. 

^  46.  In  making  such  examination,  it  shall  be  the  u, 
duty  of  the  inspectors  to  ascertain  the  qualifications  of 
the  candidate,  in  respect  to  moral  character,  learning  and 
ability. 

'§)  47.  If  the  inspectors  shall  be  satisfied  in  respect  to  ib. 
the  qualifications  of  the  candidate,  they  shall  deliver  to 
the  person  so  examined,  a  certificate  signed  by  them,  in 
such  form  as  shall  be  prescribed  by  the  superintendent  of 
common  schools. 

^  48.  The  inspectors,  or  any  three  of  them,  may  an-  j^^ 
nul  any  such  certificate  given  by  them  or  their  predeces- 
sors in  office,  when  they  shall  think  proper,  giving  at 
least  ten  days'  previous  notice  in  writing  to  the  teacher 
holding  it,  and  to  the  trustees  of  the  district  in  which  he 
may  be  employed,  of  their  intention  to  annul  the  same. 

^  49.  The  inspectors,  whenever  they  shall  deem  it  ib. 
necessary,  may  require  a  re-examination  of  all  or  any 
of  the  teachers  in  their  towns,  for  the  purpose  of  ascer- 
taining their  qualifications  to  continue  as  such  teachers. 

^  50.  The  annuUing  of  a  certificate  shall  not  disquali-  ib. 


374  LAWS   RELATING   TO 

fy  the  teacher  to  whom  it  was  given,  until  a  note  in  writ- 
*  4T6  ing  thereof,  containing  the  *name  of  the  teacher,  and 
the  time  when  his  certificate  was  annulled,  shall  be 
made  by  the  inspectors,  and  filed  in  the  oflSce  of  the  clerk 
of  their  town. 

lb.  ^  51.  Where  any  school  district  shall  be  composed  of 

a  part  of  two  or  more  towns,  or  any  school-house  shall 
stand  on  the  divisicwn  line  of  any  two  towns,  the  inspec- 
tors of  either  town  may  examine  into  and  certify  the 
qualifications  of  any  teacher,  offering  to  teach  in  such 
district,  in  the  same  manner  as  is  provided  by  the  pre- 
ceding sections  of  this  Article;  and  may  also  in  the  same 
manner  annul  the  certificate  of  such  teacher. 

lb.  aMovisi-     g  52.  It  shall  be  the  doty  of  the  inspectors  to  visit  all 

ttng  8c  <H)i8.  g^pj^  common  schools,  within  their  town  as  shall  be  or- 
ganized according  to  law^  at  least  once  a  year,  and  of- 
tener  if  they  shall  deem  it  necessary. 

^'''  §  53.  At  such  visitation,  the  inspectors  shall  examine 

into  the  state  and  condition  of  such  schools,  both  as  re- 
spects the  progress  of  the  scholars  in  learning,  and  the 
good  order  of  the  schools ;  and  may  give  their  advice 
and  direction  to  the  trustees  and  teachers  of  such  schools 
as  to  the  government  thereof,  and  the  course  of  studies 
to  be  pursued  therein. 

ii^  ^  54.  Each  of  the  inspectors,  by  agreement  with,  or 

direction  of,  the  other  inspectors,  may  be  assigned  to  a 
certain  number  of  school  districts,  which  it  shall  be  his 
special  duty  to  visit  and  inspect. 

ARTICLE  FIFTH. 

Of  the  Formation  of  School  Districts,  and  of  the 
Choice,  Duties  and  Powers  of  their  Officers. 

Sec.  55.  Duty  of  commissioners  when  dLslrict  formed;  notice  to  be  given. 

56.  Manner  of  serving  notice. 

57.  In  certain  cases,  notice  to  be  renewed. 
53.  For  not  serving  notice,  forfeiture  $5. 

59.  When  meeting  called,  duty  oi  inhabitants  to  assemble. 

60.  Clualifications  of  voters;  fine  for  voting  without  right. 

61.  Powers  of  meeting. 

62  to  65.  To  raise  money  to  purchase  district  libraries;  annually  to 
make  additions;  who  hbrarian;  taxes  how  collected. 

66.  Annnal  meetmgs,  how  and  when  to  be  appointed. 

67.  Special  meetings  how  called,  effect  of  want  of  iwtice. 

68.  Amount  to  be  raised  for  building,  &e.  sdiool-honse,  limited. 

69.  Altering  school  districts  formed  from  several  towns. 

70  &  71.  Sites  of  school-houses  how  and  when  altered,  votes  how 
to  be  taken. 

72.  Notices  of  district  meetings  to  alter  sites,  to  specify  objects. 

73.  Sale  of  former  site  on  change  being  made;  security  for  purchase. 

74.  Money  how  appropriated. 

75  &76.  Trustees  may  sell  former  site  when  changed;  proceeds  how 
applied. 

77.  In  dividing  districts,  proportion  due  new  district  to  be  ascer- 
tained. 


COMMON   SCHOOLS.  375 

Sec.  78.  Proportion  how  ascertained;  and  deduction  for  debts  of  former 
district. 

79.  Amount  of  such  proportion,  how  collected  and  applied. 

80.  Duration  of  office  of  district  officers. 

81.  Vacancies  in  such  offices,  how  tilled. 

82.  Penalty  for  refusing  to  serve  after  appointment,  and  for  neglect- 

ing without  refusing. 

83.  Persons  chosen  may  resign,  and  in  what  manner. 

84.  Duty  of  clerk  of  district. 

85.  Duty  and  powers  of  trustees. 

86.  Among  whom  tax  to  be  apportiooed,  and  upon  what  to  be  SB- 


'S?. Persons  owning  lands  occupied  by  agents,  considered  taxable  in-     ^  ^fj 
habitants. 
38.  Improved  land  unoccupied,  liable  to  taxation,  though  owner  re- 

side  out  of  district. 
89  &  90.  Valuations  of  taxable  property,  how  ascertained  and  when 
reduced. 

91.  Who  exempted  from  taxation  to  build  a  school-house. 

92.  Trustees  to  assess  district  tax,  and  make  out  list  thereof. 

93.  When  tenant  may  charge  tax  paid  by  him,  to  owner  of  the  land. 

94.  Where  fuel  for  school  is  not  provided  by  tax,  who  to  furnish  the 

same. 

95.  Trustees  to  determine  the  proportion  to  be  provided  by  each 

person. 
96&97.  If  any  person  omit,  trustees  to  furnish;  how  collected. 
98  to  101.  Collector's  warrant,  and  his  duty  under  it;  taxes  and  rate 

bills  how  collected. 

102.  When  trustees  to  renew  warrant;  and  when  to  collect  tax  by  suit. 

103.  Moneys  apportioned  to  a  district  if  unpaid;  how  to  be  recovered 

and  applied. 

104.  Trustees  of  district  to  report;  when  and  to  whom. 

105  &  106.  To  whom  report  to  be  delivered,  and  what  to  specify ; 
not  to  contain  paupers. 

107.  Who  to  be  deemed  qualified  teadiers. 

108.  When  a  district  is  formed  of  two  or  moi«  towns,  trustees  to 

whom  to  report. 

109.  Trustee  of  separate  neighborhood,  how  chosen;  when  and  to 

whom  to  report. 

110.  Penalty  on  trustees  for  signing  a  false  report. 

IIL  Property  vested  in  trastees,  held  by  them  as  a  corporation. 
112  &  113.  At  expiration  of  office,  trustees  to  account;  balance  how 
paid. 

114.  Penalty  for  refusing,  &c.  to  account. 

115.  Who  to  prosecute  for  same,  and  how  applied. 

116.  Remedy  for  recovering  balance  from  a  former  trustee;  who  to 

sue  for  it. 

117.  Bonds,  &e.  taken  by  trustees,  to  be  delivered  to  their  succes- 

sors. 

118.  Fees  of  arflector  of  district. 

119.  To  pay  to  trustees  moneys  collected,  and  when. 

120.  When  required  by  them,  to  give  bond  to  trustees;  its  conditions. 

121.  If  he  do  not  execute  bond,  office  to  be  vacated. 

122.  If  money  lost  by  his  neglect,  what  he  shall  forfeit. 

12:3.  Who  to  sue  for  such  fodfeiture,  and  for  balances  remaining  in  his 

hands. 
134.  Appeal  to  superintendent  of  common  schools. 

^  55.  Whenever  any  school  district  shall  be  formed  commis- 
in  any  town  by  the  commissioners  of  common  schools,  IJve^otice. 
it  shall  be  the  duty  of  some  one  or  more  of  the  commis- 
sioners,  within  twenty  days  thereafter,  to  prepare  a  no- 
tice in  writing,  describing  such  district,  and  appointing 
a  time  and  place  for  the  first  district  meeting,  and  to  de- 
liver such  notice  to  a  taxable  inhabitant  of  the  district 


376  LAWS    RELATING   TO 

Notice  for       §  56.  It  shall  be  the  duty  of  such  inhabitant  to  notify 

first  meeting  gygj.y  ^^[jgf  inhabitant  of  the  district,  qualified  to  vote  at 
district  meetings,  by  reading  the  notice  in  the  hearing  of 
each  such  inhabitant,  or  in  case  of  his  absence  from  home, 
by  leaving  a  copy  thereof,  or  of  so  much  thereof  as  re- 
lates to  the  time  and  place  of  such  meeting,  at  the  place 
of  his  abode,  at  least  six  days  before  the  time  of  the 
meeting. 

When  to  be  g  57,  In  case  such  notice  shall  not  be  given,  or  the  in- 
■ '  habitants  of  a  district  shall  refuse  or  neglect  to  assemble, 
or  form  a  district  meeting,  when  so  notified  ;  or  in  case 
any  such  district,  having  been  formed  and  organized  in 
pursuance  of  such  notice,  shall  afterwards  be  dissolved, 
so  that  no  competent  authority  shall  exist  therein,  to  call 
a  special  district  meeting  in  the  manner  hereinafter  pro- 
vided ;  such  notice  shall  be  renewed  by  the  commission- 
ers, and  served  in  the  manner  above  prescribed. 

Pe*ai*y^for       *S  ^^-  Every  taxable  inhabitant  to  whom  a  notice  of 

not  serviasT  a  district  meeting  shall  have  been  properly  delivered  for 
service,  who  shall  refuse  or  neglect  to  serve  the  notice  in 
the  manner  above  in  this  Article  enjoined,  shall  for  eve- 
ly  such  offence  forfeit  the  sum  of  five  dollars. 

Inhabitants       ^  59.  Whenever  any  district  meeting  shall  be  called. 

sembie?  *'^  ^^  ^^he  manner  prescribed  in  the  preceding  sections  of  this 
Article,  it  shall  be  the  duty  of  the  inhabitants  of  the  dis- 
trict, qualified  to  vote  at  district  meetings,  to  assemble 
together  at  the  time  and  place  mentioned  in  the  notice. 

^fl'^S"'""  S  60.  No  person  shall  vote  at  any  school  district  meet- 
ing, unless  he  shall  be  a  freeholder  in  the  town  where 
he  votes  or  shall  have  been  assessed  the  same  year  in 
which  he  votes,  or  the  preceding  year,  to  pay  taxes  there- 
in ;  or  shall  possess  personal  property  over  and  above 
such  as  is  exempt  from  execution,  to  the  amount  of  fif- 
ty dollars,  liable  to  taxation  in  the  district ;  and  every 
person  not  so  qualified,  who  shall  vote  at  any  such  meet- 
ing, shall  for  each  offence  forfeit  the  sum  of  ten  dollars. 

Powers  of  §  61.  The  inhabitants  so  entitled  to  vote,  when  so  as- 
sembled in  such  district  meeting,  or  when  lawfully  as- 
sembled at  any  other  district  meeting,  shall  have  power, 
by  a  majority  of  the  votes  of  those  present, 

1.  To  appoint  a  moderator  for  the  time  being : 

2.  To  adjourn  from  time  to  time,  as  occasion  may  re- 
quire : 

3.  To  choose  a  district  cletk,  three  trustees,  and  one 
district  collector,  at  their  first  meeting,  and  as  often  a? 
such  offices^  or  either  of  them,  become  vacated : 


district 
meeting. 


COMMON    SCHOOLS.  S7T 

4.  To  designate  a  site  for  a  district  school-house: 

5.  To  lay  such  tax  on  the  taxable  inhabitants  of  the 
district  as  the  meeting  shall  deem  sufficient  to  purchase 
or  lease  a  suitable  site  for  a  school-house,  and  to  build, 
hire,  or  purchase  such  school-house,  and  to  keep  in  re- 
pair and  furnish  the  same  with  necessary  fuel  and  ap- 
pendages : 

6.  To  repeal,  alter,  and  modify  their  proceedings  from 
time  to  time,  as  occasion  may  require. 

g  62.  The  taxable  inhabitants  of  each  school  district  To  raise  hm)- 
in  the  state  shall  have  power,  when  lawfully  assembled  chLedis- 
at  any  district  meeting,  to  lay  a  tax  on  the  district,  not  *"*^'  •'•"""y- 
exceeding  twenty  dollars  for  the  first  year,  for  the  pur- 
chase of  a  district  library,  consisting  of  such  books  as 
they  shall  in  their  district  meeting  direct,  and  such  fur- 
ther sum  as  they  may  deem  necessary  for  the  purchase 
of  a  book  case.      The  intention  to  propose  such  tax 
shall  be  stated  in  the  notice  required  to  be  given  for  such 
meeting.' 

^  63.  The  taxable  inhabitants  of  each  school  district  addltioDs''^ 
shall  also  have  power  when  so  assembled  in  any  subse- 
quent year,  to  lay  a  tax  not  exceeding  ten  dollars  in 
any  one  year,  for  the  purpose  of  making  additions  to 
the  district  library.' 

^  64.  The  clerk  of  the  district,  or  such  other  person  Librarian. 
as  the  taxable  inhabitants  may  at  their  annual  meeting 
designate  and  appoint  by  a  majority  of  votes,  shall  be 
the  librarian  of  the  district,  and  shall  have  the  care  and 
custody  of  the  library,  under  such  regulations  as  the  in- 
habitants may  adopt  for  his  government.' 

§  65.  The  taxes  authorized  by  this  act  to  be  raised,  ^axes  how 
shall  be  assessed  and  collected  in  the  same  manner  as  a 
tax  for  building  a  school-house.' 

^  66.  [Sec.  62.]  In  each  school  district  an  annual  Annual 
meeting  shall  be  held  at  the  time  and  place  previously  "**'  "'^" 
appointed ;  and  at  the  first  district  meeting,  and  at  each 
annual  meeting,  the  time  and  place  of  holding  the  next 
annual  meeting  shall  be  fixed. 

^  67.  [Sec.  63.]  A  special  meeting  shall  be  held  in  special^ 
each  district  whenever  called  by  the  trustees ;  and  the 
proceedings  of  no  district  meeting,  annual  or  special, 
shall  be  held  illegal,  for  want  of  a  due  notice  to  all  the 
persons  qualified  to  vote  thereat,  unless  it  shall  appear 

._.  -  (1)  Laws  of  1835,  chap.  80.    .       .  


378 


LAWS    RELATING   TO 


Joint  meet- 
ing ot  com- 
missioners. 


that  the  omission  to  give  such  notice  was  wilful  and 
fraudulent. 
*  4T9  *S  68-  [Sec.  64.]  No  tax  to  be  voted  by  a  district 
t^^"*"**"  °^  meeting  for  building,  hiring  or  purchasing  a  school-house 
shall  exceed  the  sum  of  four  hundred  dollars,  unless  the 
commissioners  of  common  schools  of  the  town  in  which 
the  school-house  is  to  be  situated,  shall  certify  in  writ- 
ing, their  opinion  that  a  larger  sum  ought  to  be  raised, 
and  shall  specify  the  sum ;  in  which  case,  a  sum  not 
exceeding  the  sum  so  specified,  shall  be  raised. 

§  69.  [Sec.  65.]  If  the  commissioners  of  common 
schools  in  any  town,  shall  require  in  writing,  the  attend- 
ance of  the  commissioner  of  any  other  town  or  towns, 
at  a  joint  meeting  for  the  purpose  of  altering  a  school 
district  formed  from  their  respective  towns,  and  a  major 
part  of  the  commissioners  notified  shall  refuse  or  neglect 
to  attend,  the  commissioners  attending,  by  a  majority  of 
votes,  may  call  a  special  district  meeting  of  such  district, 
for  the  purpose  of  deciding  on  such  proposed  alteration ; 
and  the  decision  of  such  meeting  shall  be  as  valid  as  if 
made  by  the  commissioners  of  all  the  towns  interested, 
but  shall  extend  no  further  than  to  dissolve  the  district 
formed  from  such  towns. 

^  70.  Whenever  a  school-house  shall  have  been  built 
or  purchased  for  a  district,  the  site  of  such  school-house 
shall  not  be  changed,  nor  the  building  thereon  be  re- 
moved, as  long  as  the  district  shall  remain  unaltered, 
unless  by  the  consent,  in  writing,  of  the  commissioners 
of  common  schools,  or  a  majority  of  them,  of  the  town 
or  towns  within  which  such  district  shall  be  situated, 
stating  that  in  their  opinion  such  removal  is  necessary ; 
nor  then,  unless  two-thirds  of  all  those  present  at  a  spe- 
cial meeting  of  such  district,  called  for  that  purpose,  and 
qualified  to  vote  therein,  shall  vote  for  such  removal  and 
in  favor  of  such  new  site.* 

§  71.  Such  vote  shall  be  taken  by  ayes  and  noes,  and 
the  name  of  each  voter,  with  the  vote  that  he  shall  give, 
shall  be  entered  by  the  clerk  in  the  records  of  such  school 
district.* 

^  72.  Every  notice  of  a  district  meeting  called  in  pur- 
suance of  this  act  shall  state  the  purpose  for  which  such 
meeting  is  called.' 

§  73.  Whenever  the  site  of  a  school-house  shall  have 
been  changed  as  herein  provided,  the  inhabitants  of  the 


Sites  of 
school-hou- 
ses, when 
and  how 
altered. 


Votes  how 
taken. 


Contents  of 
notice. 


Sale  of  for 
tner  site. 


(1)  Laws  of  1831,  chap.  44,  and  orig.  $  66  repealed. 


XJOMMON   SCHOOLS.  379 

district  entitled  to  vote,  lawfully  assembled  at  any  district 
meeting,  shall  have  power,  by  a  majority  of  the  votes  of 
those  present,  to  direct  the  sale  of  the  former  site  or  lot, 
and  the  buildings  thereon,  and  appurtenances,  or  any 
part  thereof,  at  such  price  and  upon  such  terms  as  they 
shall  deem  most  advantageous  to  the  district ;  and  any  ^^^^^ 
deed  duly  executed  by  the  trustees  of  such  district,  or  a 
majority  of  them,  in  pursuance  of  such  direction,  shall 
be  valid  and  effectual  to  pass  all  the  estate  or  interest  of 
such  school  district  in  the  premises  intended  to  be  con- 
veyed thereby,  to  the  grantee  named  in  such  deed ;  and  ^uJ"4'Je'°' 
when  a  credit  shall  be  directed  to  be  given  upon  such  how  uken. 
sale,  for  the  consideration  money,  or  any  part  thereof, 
the  trustees  are  hereby  authorized  to  take,  in  their  cor- 
porate name,  such  security  by  bond  and  mortgage,  or 
otherwise,  for  the  payment,  thereof,  as  they  shall  deem 
best,  and  shall  hold  the  same  as  a  corporation,  and  ac-  ^ 
count  therefor  to  their  successors  in  office  and  to  the  dis- 
trict, in  the  manner  they  are  now  required  by  law  to  ac- 
count for  moneys  received  by  them  ;  and  the  trustees  of 
any  such  district  for  the  time  being,  may,  in  their  name 
of  office,  sue  for  and  recover  the  moneys  due  and  unpaid 
upon  any  security  so  taken  by  them  or  their  predecessors 
in  office,  with  interests  and  costs.* 

^  74.  All  moneys  arising  from  any  sale  made  in  pur-  ^"^-^^"^^ 
suance  of  the  last  preceding  section,  shall  be  appropri- new  site,  &c. 
ated  to  the  payment  of  the  expenses  incurred  in  procur- 
ing a  new  site  and  in  removing  or  erecting  a  school- 
house,  or  either  of  them,  so  far  as  such  application  there- 
of shall  be  necessaiy.* 

^  75.  Whenever  the  site  of  the  school-house  in  any  Trustees 
school  district  in  this  state  shall  have  been  legally  chang-  ^t*^  ^ 
ed,  the  trustees  of  such  district  shall  have  power  to  sell 
and  convey  the  former  site,  and  the  building  or  buildings 
thereon,  upon  such  terms  as  they  shall  deem  advanta- 
geous to  the  district.* 

^  76.  The  proceeds  arising  from  any  sale  made  in  Procecfis 
pursuance  of  the  preceding  section,  shall  be  appropriated  appropriaed 
to  the  payment  of  expenses  incurred  in  procuring  a  new 
site,  and  in  removing  or  erecting  a  building  or  build- 
ings thereon,  so  far  as  such  appropriation  shall  be  neces- 
sary.' 

^  77.  [Sec.  67.]  When  a  new  district  shall  be  formed  tHc^Zw"^ 
from  one  or  more  districts,  possessed  of  a  school-house ;  school- 
'-m. . 

(I)  Laws  of  1831,  chap.  44.        (2)  lb.  1835,  chap.  308,  §  4  and  5.  ;  j, ,; 


380 


LAWS    RELATING   TO 


house,  &c ' 
disposed  of. 


Proportion 
how  ascer- 
tained. 


How  levied 
and  applied. 


«480 


District  offi- 
cers.   Te- 
nure- 


Vacancies 
how  filled. 


Forfeitures. 


and  in  cases  where  any  district  from  which  such  new 
district  shall  be  in  whole  or  in  part  formed,  shall  be  en- 
titled to  other  property  than  its  school-house,  then  the 
commissioners  of  common  schools,  at  the  time  of  form- 
ing such  new  district,  shall  ascertain  and  determine  the 
amount  justly  due  to  such  new  district,  from  any  district 
out  of  which  it  may  have  been  in  whole  or  in  part  form- 
ed, as  the  proportion  of  such  new  district  of  the  value  of 
the  school-house  and  other  property  belonging  to  the  for- 
mer district,  at  the  time  of  such  division. 

§  78.  [Sec.  68.]  Such  proportion  shall  be  ascertained, 
according  to  the  taxable  property  of  the  inhabitants  of 
the  respective  parts  of  such  former  district,  at  the  time 
of  the  division,  by  the  best  evidence  in  the  power  of  the 
commissioners ;  and  deduction  shall  be  made  therein  for 
any  debts  due  from  the  former  district. 

^  79.  [Sec.  69.]  Such  proportion,  when  ascertained, 
shall  be  levied,  raised  and  collected,  with  the  fees  for 
collection,  by  the  trustees  of  the  district  retaining  the 
school-house  ©r  other  property  of  the  former  district,  upon 
the  taxable  inhabitants  of  their  district  in  the  same  man- 
ner* as  if  the  same  had  been  authorized  by  a  vote  of 
their  district  for  the  building  of  a  school-house;  and 
when  collected,  shall  be  paid  to  the  trustees  of  the' new 
district,  to  be  applied  by  them  towards  procuring  a  school- 
house  for  their  district;  and  the  moneys  so  paid  to  the 
new  district  shall  be  allowed  to  the  credit  of  the  inhabi- 
tants who  were  taken  from  the  former  district,  in  reduc-'! 
tion  of  any  tax  that  may  be  imposed  for  erecting  a  ' 
school-house. 

^  80.  [Sec.  70.]  The  clerk,  trustees,  and  collector  of 
each  school  district,  shall  hold  their  respective  offices  un- 
til the  annual  meeting  of  such  district  next  following  the 
time  of  their  appintment,  and  until  others  shall  be  elect- 
ed in  their  places. 

^81.  [Sec.  71.]  In  case  any  such  office  shall  be  va- 
cated by  the  death,  refusal  to  serve,  removal  out  of  the 
district,  or  incapacity  of  any  such  officer,  and  the  va-  • 
cancy  shall  not  be  supplied  by  a  district  meeting  with-  ' 
in  one  month  thereafter,  the  commissioners  of  common 
schools  of  the  town  may  appoint  any  person  residing  in 
such  district  to  supply  such  vacancy. 

^  82.  [Sec.  72.]  Every  person  duly  chosen  or  appoint- 
ed to  any  such  office,  who,  without  sufficient  cause, 
shall  refuse  to  serve  therein,  shall  forfeit  the  sum  of  five 
dollars ;  and  every  person  so  chosen  or  appointed,  and 


COMMON   SCHOOLS.  '381 

not  having  refused  to  accept,  who  shall  neglect  to  per- 
form the  duties  of  his  office,  shall  forfeit  the  sum  of  ten 
dollars. 

§  83.  [Sec.  73.]  Any  person  chosen  or  appointed  to  Resignations 
any  such  office,  may  resign  the  same  in  the  manner  pro-  '  -  ' 
vided  in  Chapter  eleventh,  Title  third,  section  thirty- 
third  of  this  Act ;  and  the  acceptance  of  such  resigna- 
tion, shall  be  a  bar  to  the  recovery  of  either  of  the  penal- 
ties mentioned  in  the  preceding  section.  The  justices 
accepting  the  resignation  shall  give  notice  thereof,  to  the 
clerk,  or  to  one  of  the  trustees  of  the  school  district,  to 
which  the  officer  resigning  shall  belong. 

§  84.  [Sec.  74.]  It  shall  be  the  duty  of  the  clerk  of  outyof  dis- 
each  school  district, 

1.  To  record  the  proceedings  of  his  district  in  a  book 
to  be  provided  for  that  purpose  by  the  district,  and  to  en- 
ter therein  true  copies  of  all  reports  made  by  the  trus- 
tees of  his  district,  to  the  commissioners  of  common 
schools : 

2.  To  give  notice  of  the  time  and  place  for  special  dis- 
trict meetings,  when  the  same  shall  be  called  by  the 
trustees  of  the  district,  to  each  inhabitant  of  such  district 
liable  to  pay  taxes,  at  least  five  days  before  such  meet- 
ing shall  be  held,  in  the  manner  prescribed  in  the  fifty- 
sixth  section  of  this  Title : 

3.  To  affix  a  notice  in  writing  of  the  time  and  place 
for  any  adjourned  district  meeting,  when  the  same  shall 
be  adjourned  for  a  longer  time  than  one  month,  in  at 

least  four  of  the  most  public  places  of  'such  district,  at    *  48i 
least  five  days  before  the  time  appointed  for  such  ad- 
journed meeting : 

4.  To  give  the  like  notice  of  every  annual  district  ■ 
meeting : 

5 .  To  keep  and  preserve  all  records,  books  and  papers, 
belonging  to  his  office,  and  to  deliver  the  same  to  his 
successor  in  office,  in  the  manner  and  subject  to  the  pe- 
nalties provided  by  law,  in  relation  to  the  town  clerk. 

§  85.   [Sec.  75.]  It  shall  be  the  duty  of  the  trustees  D"|y  of  «'"»• 
of  every  school  district,  and  they  shall  have  power, 

1.  To  call  special  meetings  of  the  inhabitants  of  such 
districts  liable  to  pay  taxes,  whenever  they  shall  deem 
it  necessary  and  proper : 

2.  To  give  notice  of  special,  annual  and  adjourned 
meetings,  in  the  manner  prescribed  in  the  last  preceding 
section,  if  there  be  no  clerk  of  the  district,  or  he  be  ab- 
sent or  incapable  of  acting : 


382  LAWS    RELATING   TO 

3.  To  make  out  a  tax  list  of  every  distnci  tax,  Voted 
by  any  such  meeting,  containing  the  names  of  all  the 
taxaJDle  inhabitants  residing  in  the  district  at  the  time  of 
making  out  the  list,  and  the  amount  of  tax  payable  by 
each  inhabitant,  set  opposite  to  his  name : 

4.  To  annex  to  such  tax  list  a  warrant,  directed  to 
the  collector  of  the  district,  for  the  collection  of  the  sums 
in  such  list  mentioned,  with  five  cents  on  each  dollar 
thereof,  for  his  fees  : 

5.  To  purchase  or  lease  a  site  for  the  district  school- 
house,  as  designated  by  a  meeting  of  the  district,  and  to 
build,  hire  or  purchase,  keep  in  repair,  and  furnish  such 
school-house  with  necessary  fuel  and  appendages,  out  of 
the  funds  collected  and  paid  to  them  for  such  purposes  : 

6.  To  have  the  custody  and  safe  keeping  of  the  district 
school-house: 

7.  To  contract  with  and  employ  all  teachers  in  the 
district : 

8.  To  pay  the  wages  of  such  teachers  when  qualified, 
out  of  the  moneys  which  shall  come  into  their  hands 
from  the  commissioners  of  common  schools,  so  far  as 
such  moneys  shall  be  sufficient  for  that  purpose;  and  to 
collect  the  residue  of  such  wages,  excepting  such  sums 
as  may  have  been  collected  by  the  teachers,  from  all  per- 
sons liable  therefor : 

9.  To  divide  the  public  moneys  received  by  them, 
whenever  authorized  by  a  vote  of  their  district,  into  not 
exceeding  four  portions  for  each  year;  to  assign  and  ap- 
ply one  of  such  portions  to  each  quarter  or  term  during 
which  a  school  shall  be  kept  in  such  district,  for  the  pay- 

•*ment  of  the  teacher's  wages,  during  such  quarter  or 
*  term ;  and  to  collect  the  residue  of  such  wages,  not  paid 
by  the  proportion  of  public  money  allotted  for  that  pur- 
pose, from  the  person  liable  therefor,  as  above  provided: 
#483  *io.  To  exempt  from  the  payment  of  the  wages  of 
teachers,  such  indigent  persons  within  the  district,  as 
they  shall  think  proper : 

1 1 .  To  certify  such  exemptions,  and  deliver  the  cer- 
tificate thereof  to  the  clerk  of  the  district,  to  be  kept  on 
file  in  his  office  : 

1 2.  To  ascertain  by  examination  of  the  school  lists 
kept  by  such  teachers,  the  number  of  days  for  which 
•each  person  not  so  exempted,  shall  be  liable  to  pay  for 
instruction,  and  the  amount  payable  by  each  person : 

13.  To  make  out  a  rate  bill  containing  the  name  of 
each  person  so  liable,  and  the  amount  for  which  he  is 


^v^'*'-^ 


COMMON    SCHOOLS.  383 

liable,  adding  thereto  five  cents  on  each  dollar  of  the 
sum  due  from  him,  for  collector's  fees ;  and  to  annex 
thereto  a  warrant  for  the  collection  thereof: 

14.  To  deliver  such  rate  bill,  with  the  warrant  annex-    'nf^"'^ 
ed,  to  the  collector  of  the  district,  who  shall  execute  the 
same  in  like  manner  with  other  warrants  directed  to  him, 
by  them. 

S  86.  rSec.  76.1  In  making  out  a  tax  list,  the  trustees  Taxes  how 

1     11  '■      •  I-'  11     1  1  1      •    1     1  •  apportioned. 

shall  apportion  the  tax  on  all  the  taxable  inhabitants 
within  the  district,  according  to  the  valuations  of  the  tax- 
able property  which  shall  be  owned  or  possessed  by  them, 
at  the  time  of  making  out  the  list  within  the  district,  or 
which  being  intersected  by  the  boundaries  of  the  district, 
shall  be  so  owned  or  possessed  by  them,  partly  in  such 
district  and  partly  in  any  adjoining  district ;  but  where  _ 

taxable  property  shall  be  owned  by  one  inhabitant  and 
possessed  by  another,  only  one  of  them  shall  be  taxed 
therefor. 

^  87.  [Sec.  77.]  Every  person  owning  or  holding  any  ib. 
real  property  within  any  school  district,  who  shall  im- 
prove and  occupy  the  same  by  his  agent  or  servant, 
shall,  in  respect  to  the  liability  of  such  property  to  taxa- 
tion, be  considered  a  taxable  inhabitant  of  such  district, 
in  the  same  manner  as  if  he  actually  resided  therein. 

^  88.  [See.  78.]  If  there  shall  be  any  real  property  ii>. 
within  a  district,  cultivated  and  improved,  but  not  occu- 
pied by  a  tenant,  or  agent,  and  the  owner  of  which  shall 
not  reside  within  the  district,  nor  be  liable  to  be  taxed 
for  the  same  in  an  adjoining  district,  such  owner  shall 
be  taxable  therefor,  in  the  same  manner  as  if  he  were 
an  inhabitant  of  the  district ;  but  no  portion  of  such  pro- 
perty, but  such  as  shall  be  actually  cleared  and  cultivat- 
ed, shall  be  included  in  such  taxation. 

^  89.  [Sec.  79.]  The  valuations  of  taxable  property  J;'^"^^^"/^- 
shall  be  ascertained,  as  far  as  possible,  from  the  Icist  as-  tained. 
sessment  roll  of  the  town  ;  and  no  person  shall  be  enti- 
tled to  any  reduction  in  the  valuation  of  such  property, 
as  so  ascertained,  unless  he  shall  give  notice  of  his  claim 
to  such  reduction,  to  the  trustees  of  the  district,  before 
the  tax  list  shall  be  made  out. 

*§  90.  [Sec.  80.]  In  every  case  where  such  reduction    *  483 
shall  be  duly  claimed,  and  in  every  case  where  the  va-  how  ascer- 
luation  of  taxable  property  cannot  be  ascertained  from  '*'°^'^- 
the  last  assessment  roll  of  the  town,  the  trustees  shall 
ascertain  the  true  value  of  the  property  to  be  taxed,  from 
the  best  evidence  in  their  power,  giving  notice  to  the  per- 


384 


LAWS    RELATING    TO 


Exemption 
in  certain 
cases. 


Time  of  ma- 
king tax  list. 


Remedy  of 
tenant 
against  own- 
er. 


Fuel  how 
provided. 


Proportion 
how  deter- 
mined. 


When  trus- 
tees to  fur- 
nish, and 
charge  de- 
linquent. 


lb. 


sons  interested,  and  proceeding  in  the  same  manner  as 
the  town  assessors  are  required  by  law  to  proceed,  in  the 
valuations  of  taxable  property. 

^  91.  [Sec.  81.]  Every  taxable  inhabitant  of  a  dis- 
trict, who  shall  have  been,  within  four  years,  set  off  from 
any  other  district,  by  the  commissioners  of  common 
schools,  without  his  consent,  and  shall,  within  that  pe- 
riod, have  actually  paid  in  such  other  district,  under  a 
lawfiil  assessment  therein,  a  district  tax  for  building  a 
school-house,  shall  be  exempted  by  the  trustees  of  the 
district  where  he  shall  reside,  from  the  payment  of  any 
tax  for  building  a  school-house  therein. 

^  92.  [Sec.  82.]  Every  district  tax  shall  be  assessed, 
and  the  tax  list  thereof  be  made  out  by  the  trustees, 
within  one  month  after  the  district  meeting  in  which  the 
tax  shall  have  been  voted. 

^  93.  [Sec.  83.]  Where  any  district  tax,  for  the  pur- 
pose of  purchasing  a  site  for  a  school-house,  or  for  pur- 
chasing, or  building,  keeping  in  repair,  or  furnishing 
such  school-house  with  necessary  fuel  and  appendages, 
shall  be  lawfully  assessed  and  paid  by  any  person,  on 
account  of  any  real  property,  whereof  he  is  only  tenant 
at  will,  or  for  three  years,  or  for  a  less  period  of  time, 
such  tenant  may  charge  the  owner  of  such  real  estate 
with  the  amount  of  the  tax  so  paid  by  him,  unless  some 
agreement  to  the  contrary  shall  have  been  made  by  such, 
tenant. 

§  94.  [Sec.  84.]  Where  the  necessary  fuel  for  the 
school  of  any  district  shall  not  be  provided,  by  means  of 
a  tax  on  the  inhabitants  of  the  district,  it  shall  be  the 
duty  of  every  person  sending  a  child  to  the  school,  to 
provide  his  just  proportion  of  such  fuel. 

^  95.  [Sec.  85.]  The  proportion  of  fuel  which  every 
person  sending  children  to  the  school,  shall  be  liable  to 
provide,  shall  be  determined  by  the  trustees  of  the  dis- 
trict, according  to  the  number  of  children  sent  by  each; 
but  such  indigent  persons  as  in  the  judgment  of  the  trus- 
tees, shall  be  unable  to  provide  the  same,  shall  be  ex- 
empted from  such  liability. 

^  96.  [Sec.  86.]  If  any  person  liable  to  provide  such 
fuel,  shall  omit  to  provide  the  same,  on  notice  from  any 
one  of  such  trustees,  it  shall  be  the  duty  of  the  trustees 
to  furnish  such  fuel,  and  to  charge  the  person  so  in  de- 
fault the  value  of,  or  amount  paid  for,  the  fuel  furnish- 
ed. 

§  97.  [Sec.  87.]  Such  value  or  amount  may  be  added 


^LSJCS^. 


COMMON   SCHOOLS.  385 

to  the  rate  bill  of  the  moneys  due  for  instruction,  and 
may  be  collected  therewith,  and  in  *the  same  manner ;    •  484 
or  the  trustees  may  sue  for  and  recover  the  same,  in  their 
own  names,  with  costs  of  sutL 

^  98.  [Sec.  88.]  The  warrsuit  annexed  to  any  tax  warrant. 
list  or  rate  bill,  shall  lie  under  the  hands  and  seals  of 
the  trustees,  or  a  majority  of  them,  and  shall  command 
the  collector  to  collect  from  every  person  in  such  tax  list 
or  rate  bill  named,  the  sum  therein  set  opposite  to  his 
name ;  and  in  case  any  inhabitant  shall  not  pay  such 
sura  on  demand,  to  levy  the  same  of  his  goods  and  chat- 
tels, together  with  his  fees,  and  to  make  a  return  of  such 
warrant  within  thirty  days  after  the  delivery  thereof.* 

,§99.  The  warrant  annexed  to  any  tax  list  for  the  Tax  for 
collection  of  a  district  tax  for  erecting  or  repairing  any  Ichoo"*' 
school-house,  shall  command  the  collector,  in  case  any  ,^^^;  '^"^'^ 
person  named  in  such  list  shall  not  pay  the  sum  therein 
set  opposite  to  his  name  on  demand,  to  levy  the  same  of 
his  goods  and  chattels  in  the  same  manner  as  on  war- 
rants issued  by  the  board  of  supervisors  to  the  collectors  jf,,^  j,  p^^^ 
of  towns;  and  such  part  of  the  eighty-eighth  section  of  i,  Tiues. 
Article  five  of  the  aforesaid  Title  as  is  repugnant  there-  ""^' 
to,  is  hereby  repealed,^ 

§  100.  All  taxes  directed  to  be  raised  by  the  act  here-  ah  taxes  le- 
by  amended,  shall  be  collected  in  the  manner  prescribed  manacr!*'"' 
in  the  second  section  of  the  act  entitled  "An  act  to  amend 
the  Revised  Statutes  relating  to  common  schools,"  pass- 
ed April  2lst,  183 1.''     [See  section  99,  above.] 

^  101.  The  warrants  issued  by  the  trustees  of  school  Rate  biiis 
districts  for  the  collection  of  rate  bills,  shall  have  the  like  ^^  «>"««'- 
force  and  effect  as  warrants  issued  by  the  boards  of  su- 
pervisors to  the  collectors  of  taxes  in  towns ;  and  the  dis- 
trict collectors  are  hereby  authorized  to  collect  the  amount 
due  from  any  person  oi  persons  in  their  respective  dis- 
tricts, in  the  same  manner  that  the  collectors  are  autho- 
rized to  collect  town  and  county  charges.  Those  parts 
of  the  Revised  Statutes  which  are  inconsistent  with  the 
provisions  of  this  act,  are  hereby  repealed.^ 

,§  102.  [Sec.  89.]  If  the  sum  or  sums  of  money,  pay-  Trustees 
able  by  any  person  named  in  such  tax  list  or  rate  bill,  JT^sue'^de-''' 
shall  not  be  paid  by  him,  or  collected  by  such  warrant  unquent. 
within  the  time  therein  limited,  it  shall  and  may  be  law- 
ful for  the  trustees  to  renew  such  warrant,  in  respect  to 

(I)  Laws  of  1831,  chap.  206,  §  2.  "  An  act  to  amend  the  Revised  Sta- 
tutes relating  to  common  schools,"  passed  April  21,  1831.  (2)  Laws  of 
1832,  chap.  317,  "  An  act  to  amend  the  act  relating  to  common  schools." 
(3)  Laws  of  1835,  chap.  308,  «  3. 

25 


*%ll 


LAWS    RELATING    TO 


such  delinquent  person;  or  in  case  such  person  shall  not 
< » )  »    reside  within  their  district,  at  the  time  of  making  out  a 
tax  list  or  rate  bill,  or  shall  not  reside  therein  at  the  ex- 
piration of  such  warrant,  and  no  goods  oi'  chattels  can 
be  found  therein  whereon  to  levy  the  same ;  the  trustees 
may  sue  for  and  recover  the  same,  in  their  name  of  office. 
Proceeding       ^  103.  [Sec.  90.]  If  the  moneys  apportioned  to  a  dis- 
missionew    trict  by  the  commissioners  of  common  schools,  shall  not 
money.'^      havc  been  paid,  it  shall  be  the  duty  of  the  trustees  there- 
of, to  bring  a  suit  for  the  recovery  of  the  same,  with  in- 
terest,   against  the  commissioner  in  whose  hands  the 
same  shall  be,  or  to  pursue  such  other  remedy  for  the 
recovery  thereof,  as  is  or  shall  be  given  by  law  ;  and  the 
moneys,  when  recovered,  shall  be  applied  by  them  in 
the  same  manner  as  if  they  had  been  paid  without  suit. 
Anrmaire-        ^  104.  [Scc.  91.]  The  trustees  of  each  school  district 
vono   «^Sgjjg^jj^  ^f^Qj  (^j^g  gj.gj  ^^y  ^^  January,  in  every  year,  and 

on  or  before  the  first  day  of  March  thereafter,  make  and 
transmit  a  report,  in  writing,  to  the  commissioners  of  com- 
mon schools  for  such  town,  dated  on  the  first  day  of 
January,  in  the  year  in  which  it  shall  be  tiansmitted. 

How  made.  ^  105.  [Sec.  92.)  Evcry  such  report  signed  and  cer- 
tified by  a  majority  of  the  trustees  making  it,  shall  be 
delivered  to  the  town  clerk,  and  shall  specify, 

!t3  eontenta.  1.  The  wholo  time  any  school  has  been  kept  in 
their  district  during  the  year  ending  on  the  day  previous 
to  the  date  of  such  report,  and  distinguishing  what  por- 
tion of  the  time  such  school  has  been  kept  by  qualified 
teachers: 

2.  The  amount  of  moneys  received  from  the  commis- 
sioners of  common  schools,  during  such  year,  and  the 
manner  in  which  such  moneys  have  been  expended: 
•  485         *3.  The  number  of  children  taught  in  the  district  dur- 
ing such  year : 

4.  The  number  of  children  residing  in  the  district  on 
the  last  day  of  December,  previous  to  the  making  of 
such  report,  over  the  age  of  five  yeai-s,  and  under  six- 
teen years  of  age,  (except  Indian  children  otherwise  pro- 
vided for  by  law,)  and  the  nan>es  of  the  parents  or  other 
persons  with  whom  such  children  shall  respectively  re- 
side, and  the  number  of  children  residing  with  each. 

Paupers  r.ot      ^  106.  It  shall  not  be  lawful  for  the  trustees  of  any 

o^  e  re  urn-  g^jj^^j  district  to  include,  in  their  annual  returns,  the 
names  of  any  children  who  are  supported  at  a  county 
poor-house.* 

(1)  Laws  of  1831,  chap.  277,  §  6. 


"  cMkbii  ^hn6'otk.  387 

^  107.  [Sec.  93.]  No  teacher  shall  be  deemed' a  qualifi-  ^l^^^^^ 
ed  teacher,  within  the  meaning  of  this  Title,  who  shall 
not  have  received,  and  shall  not  then  hold,  a  certificate  *. 

of  qualification,  dated  within  one  year,  from  the  in- 
spectors of  common  schools  for  the  town  in  which  he 
shall  be  employed. 

^  108.  [Sec.  94.]  "Where  a  school  district  is  formed  District 
out  of  two  or  more  adjoining  towns,  it  shall  be  the  duty  twTtown^" 
of  the  trustees  of  such  district,  to  make  and  transmit  a  ^^ '°  ""^ 
report  to  the  commissioners  of  cornmon  schools,  for  each 
of  the  towns  out  of  which  such  district  shall  be  formed,    ]^^^^^ 
within  the  same  time,  and  in  the  same  manner,  as  is  t»uB 

required  in  sections  ninety-one  and  ninety-two  of  this 
Title ;  distinguishing  the  number  of  children  over  the 
age  of  five  and  under  sixteen  years,  residing  in  each  '  ^ 

part  of  a  district  which  shall  be  in  a  different  town  from 
the  other  parts,  and  the  number  of  children  taught,  and 
the  amount  of  school  moneys  received  for  each  part  of 
the  district. 

S  109.  [Sec.  95.]  Where  any  neighborhood  shall  be  ^^f^l^l 
set  off  by  itself,  the  inhabitants  of  such  separate  neigh-  hooda,  how 
borhood  shall  annually  meet  together  and  choose  one '°  ^^^'^ 
trustee  ;  whose  duty  it  shall  be,  every  year,  within  the 
time  limited  for  making  district  reports,  to  make  and  trans- 
mit a  report  in  writing,  bearing  date  on  the  first  day  of    J^j^'^'^J^ 
January,  in  the  year  in  which  it  shall  be  transmitted,  to     >»^'"ij« 
the  commissioners  of  common  schools  of  the  town  from 
which  such  neighborhood  shall  be  set  off,  specifying  the 
number  of  children  over  the  age  of  five  and  under  six- 
teen years,  residing  in  such  neighborhood,  the  amount 
of  moneys  received  from  the  commissioners  since  the   k, 
date  of  his  last  report,  and  the  manner  in  which  the 
same  have  been  expended. 

g  110.  [Sec.  96. J  Every  trustee  of  a  school  district,  Pen^'ty  ^J^' 
or  separate  neighborhood,  who  shall  sign  a  false  report 
to  the  commissioners  of  common  schools  of  his  town, 
with  the  intent  of  causing  such  commissioners  to  ap-    ''".J^* 
portion  and  pay  to  his  district  or  neighborhood,  a  larger 
sum  than  its  just  proportion  of  the  school  moneys  of  the       ^^^  ^..5 
town,  shall,  for  each  offence,  forfeit  the  sum  of  twenty-    \ia>u?i<o:- 
five  dollars,  and  shall  also  be  deemed  guilty  of  a  mis-         *''*^* 
demeanor. 

^111.  [Sec.  97.]  All  property  now  vested  in  the  trus- Property  of 
tees  of  any  school  district,  for  the  use  of  schools  in  the  how  hew. 
district,  or  which  may  be  hereafter  *transferred  to  such    *  *86 


388  L4W8  R&LATING  TO 

trustees  for  that  purpose)  shall  be  held  by  them  as  a  cor- 
poration. 
Traateesto      §  112.  [Sec.  98.]  The  trustees  of  each  school  district 
account,      ghall,  on  the  expiration  of  their  offices,  render  to  their 
successors  in  office,  and  to  the  district,  at  a  district  meet- 
ing, a  just  and  true  account,  in  writing,  of  all  moneys 
received  by  them  respectively,  for  the  use  of  their  dis- 
trict, and  of  the  manner  in  which  the  same  shall  have 
been  expended  ;  which  account  shall  be  delivered  to  the 
district  clerk,  and  be  filed  by  him. 
Balance  paid     S  H^'  [^ec.  99.]  Any  balance  of  such  moneys,  which 
w  Pieces-    gjjaii  appear  from  such  account  to  remain  in  the  hands 
of  the  trustees  or  either  of  them,  at  the  time  of  rendering 
the  account,  shall  immediately  be  paid  to  sonie  one  or 
'  more  of  their  successors  in  office. 

Forfeiture       ^  114.  [Scc.  100.]  Every  trustee  who  shall  refiise  ot 
for  neglect,  neglect  to  render  such  account,  or  to  pay  over  any  ba- 
lance so  found  in  his  hands,  shall  for  each  offence,  for- 
feit the  sum  of  twenty-five  dollars. 
How  prose-      ^  115.  [Sec.  101.]  It  shall  be  the  duty  of  his  succes- 
^"'®**'        sors  in  office  to  prosecute  without  delay,  in  their  name 
of  office,  for  the  recovery  of  such  forfeiture ;  and  the 
moneys  recovered  shall  be  applied  by  them  to  the  use 
and  benefit  of  their  district  schools. 
Remedy  ^  116.  [Sec.  102.1  Such  successors  shall  also  ha ve  thc 

mer'uustees  Same  remedies  for  the  recovery  of  any  unpaid  Jjalance, 
in  the  hands  of  a  former  trustee,  or  his  representatives, 
as  are  given  to  the  commissioners  of  common  schools 
against  a  former  commissioner  and  his  representatives ; 
and  the  moneys  recovered  shall  be  applied  by  them  to 
the  use  of  their  district,  in  the  same  manner  ajs  il  ih^ 
had  been  paid  without  suit.  !  >     ■  •'■ 

Bonds  to  be  ^117.  [Sec.  103.]  All  bouds  or  securities,  taken  by 
the  trustees  from  the  collector  of  their  district,  shall  on 
the  expiration  of  their  office,  be  delivered  over  by  them 
to  their  successors  in  office. 
Fees  of  col-  g  118.  [Sec.  104.]  The  collector  of  each  school  dis- 
jector.  ^^^  gj^g^ji^  j^  allowed  five  cents  on  every  dollar  collected 
and  paid  over  by  him. 

"ueS "    s  ^^^'  ^^^- 1^^-]  ^'  ^^^^  ^  ^'^  *^"^y  ^^  ^^^^^^  ^°^ 

taxes.  pay  over  to  the  trustees  of  his  district,  some  or  one  of 
them,  all  moneys  which  he  shall  be  required  by  war- 
rant to  collect,  within  the  time  limited  in  such  warrant 
for  its  return,  and  to  take  the  receipt  of  such  trustee  or 
trustees  for  such  payment. 

To  give  bond     §  120.  [Sec.  106.]  Every  collector  of  a  school  district 


cMimi  sbHOdLS/'*'^'  389 

shall,  before  receiving  any  warrant  for  the  collection  of 
moneys,  execute  a  bond  to  the  trustees  of  his  district 
when  required  by  them,  in  their  corporate  name,  with 
one  or  more  sureties,  to  be  approved  by  one  or  more  of 
the  trustees,  in  double  the  amount  of  taxes  to  be  collect- 
ed, conditioned  for  the  due  and  faithful  execution  of  the 
duties  of  his  oflSce.  ..,i*oj 

*§  121.  [Sec.  107.]  If  any  collector  shall  not  execute  ,f*^*|j;, 
such  bond  within  the  time  allowed  him  by  the  trustees  to  proceed, 
for  that  purpose,  which  shall  not  be  less  than  ten  days, 
his  office  shall  be  vacated ;  and  the  trustees  may  appoint 
any  other  person  residing  in  the  district,  as  collector  in 
his  place. 

§  122.  [Sec.  108.J  If  by  the  neglect  of  the  collector,  Forfeiture 
any  moneys  shall  be  lost  to  his  district,  which  might '°'^"«8'«<^'- 
have  been  collected  within  the  time  Umited  in  the  war- 
rant delivered  to  him  for  their  collection,  he  shall  forfeit 
to  his  district  the  full  amount  of  the  moneys  thus  lost, 
and  shall  account  for  and  pay  over  the  same  to  the  trus- 
tees of  his  district,  in  the  same  manner  as  if  they  had      s-m  /?■« 
been  collected.  ^.^-w* 

g  123.  [Sec.  109.]  For  the  recovery  of  all  forfeitures,  Tmstcea 
and  of  balances  in  the  hands  of  a  collector  which  he  ™*^  ^"^* 
shall  have  neglected  to  pay  over,  the  trustees  of  the  dis- 
trict may  sue  in  their  name  of  office,  and  shall  be  en-  /, 

titled  to  recover  the  same  with  interest  and  costs;  and     * 

the  moneys  recovered  shall  be  applied  by  them  in  the 
same  manner  as  if  paid  without  suit. 

^  124.  Any  person  conceiving  himself  aggrieved  in  Appeals  to 
consequence  of  any  decision  made,  dent  of  com- 

1.  By  any  school  district  meeting :  moa  schools. 

2.  By  the  commissioners  of  common  schools,  in  the 
forming  or  altering,  or  in  refusing  to  form  or  alter  any 
school  district,  or  in  refusing  to  pay  any  school  moneys 
to  any  such  district : 

3.  By  the  trustees  of  any  district,  in  paying  any  teach- 
er, or  refusing  to  pay  him,  or  in  refusing  to  admit  any 
scholar  gratuitously  into  any  school: 

4.  Or  concerning  any  other  matter  under  the  present 
Title: 

May  appeal  to  the  superintendent  of  common  schools, 
whose  decision  thereon  shall  be  j&nal.* 

(1)  Amendatorjr  tict  of  1830,  chap.  320,  §  7,  by  which  the  above  $  u  sub- 
stituted for  the  orig.  sees.  110  and  111. 


390 


LAWS   RELATINa   TOjj, 


To  tnuumit 
school  re- 
ports. 


*4«8 


Penalty  for 
neglect. 


How  prose- 
cuted and 
applied. 


Notice  to 
town  clerk. 


ARTICLE  SIXTH. 

l  .     ill  ;..,■■■.  ■  •. 

,  r     ,f  Of  certain  duties  of  the  County  Clerk.  i 

Sic.  125.  Countyclerk  to  report  to  the  superintendent  of  common  schools 
what,  and  when. 
J26.  Forfeiture  for  neglecting  it. 
•''IS?.  Who  to  prosecute  for  it,  and  where  paid  wh6n  recovered. 
'    128.  Duty  of  county  clerk  when  commissioners  do  not  report. 

g  125.  [Sec.  112.]  It  shall  be  the  duty  of  each  county 
clerk,  between  the  first  day  of  August*  and  the  first  day 
of  October,^  in  every  year,  to  make  and  transmit  to  the? 
superintendent  of  common  schools,  a  report  in  writing,; 
containing  the  whole  number  of  towns  in  his  county,' 
distinguishing  the  towns  from  which  the  necessary  re- 
ports have  been  made  *to  him  by  the  commissioners  of 
common  schools,  and  containing  a  certified  copy  of  all 
such  reports. 

^  126.  [Sec.  113.1  Every  clerk  who  shall  refuse  or) 
neglect  to  make  such  report,  within  the  period  so  hmit-i 
ed,  shall,  for  each  offence^  forfeit  the  sum  of  one  hun- 
dred dollars  to  the  use  of  the  school  fund  of  the  state. 

g  127.  [Sec.  114.]  It  shall  be  the  duty  of  the  super- 
intendent of  common  schools,  to  prosecute  without  de- 
lay, in  his  name  of  office,  for  such  forfeiture,  and  to  pay 
the  moneys  recovered,  into  the  treasury  of  the  state,  to- 
the  credit  of  the  school  fund. 

^  128.  [Sec.  115.]  It  shall  be  the  duty  of  each  county 
clerk,  immediately  after  the  first  day  of  August^  in  eve- 
ry year,  in  case  the  commissioners  of  common  schools 
of  any  town  in  his  county  shall  have  neglected  to  make 
to  him  their  annual  report,  to  give  notice  of  such  neglect 
to  the  clerk  of  the  town,  who  shall  immediately  assem- 
ble such  commissioners  for  the  purpose  of  making  their 
report. 


Local  Regulations  respecting  Common  Schools, 
lunln  o;  NEW-YORK. 

Irt'tix'Vi'f  ^^'  7,  Title 2.  Chap.  15,  Parti,  R.  S. 

m  489        *§  129.  [Sec.  116.]    Whenever  the  clerk  of  the  city 

YoVk  "'^  '^^  ^^^  county  of  New-York,  shall  receive  notice  from  the 

superintendent  of  common  schools,  of  the  amount  of  the 

moneys  apportioned  to  the  city  of  New- York,  for  the 

support  and  encouragement  of  common  schools  therein, 


(1)  Laws  of  1835,  chap.  308,  «  2.    (2)  August  substituted  for  October, 
by  chap.  308,  laws  of  1835,  §  2. 


■COMMON    SCHOOLS,  391 

he  shall  immediately  lay  the  same  befwe  the  corporation 
of  the  city,  in  common  council  convened.^ 

^  130.  [Sec.   117.]   The  corporation  shall  annually  Conwration 
raise  and  collect,  by  tax  upon  the  inhabitants  of  the  city,  ncy.  ^ '"" 
a  sum  of  money  equal  to  the  sum  specified  in  such  no- 
tice, at  the  same  time,  and  in  the  same  manner  as  the      ^ijmM^ 
contingent  charges  of  the  city  are  levied  and  collected.* 

^  131.  The  corpration  of  the  city  of  New- York,  are  corporafwn 
hereby  authorized  in  addition  to  the  amount  now  requir-  ?aise  am- 
ed  to  be  raised  for  the  support  of  schools  in  the  said  city,  "°"^'  ®"'"- 
annually  to  raise  and  collect  by  tax  upon  the  inhabi- 
tants thereof,  a  sum  of  money  equal  to  one-eightieth  of 
one  pel-  cent  of  the  value  of  the  real  and  personal  pro- 
perty in  the  said  city,  or  liable  to  be  assessed  therein,  to 
be  applied  exclusively  to  the  purposes  of  common  schools 
in  the  said  city.'* 

^  132.  The  corpomtion  of  the  city  of  New- York  are  ib. 
hereby  authorized,  in  addition  to  the  amount  now  requir- 
ed to  be  raised  for  the  support  of  schools  in  the  said  city, 
annually  to  raise  and  collect  by  tax  upon  the  inhabi-  * 
tants  thereof,  a  sum  of  money,  equal  to  three-eightieths 
of  one  per  cent  of  the  value  of  the  real  and  personal  pro- 
perty in  the  said  city,  or  liable  to  be  assessed  therein,  to 
be  applied  exclusively  to  the  piirposes  of  common  schools 
in  the  said  city.^ 

§  133.  [Sec.  118.]  The  corporation  shall,  on  or  be-  vvher<;d«. 
fore  the  first  day  of  May  in  every  year,  direct  that  a  sum  ^"*''*^ " 
of  money  equal  to  the  amount  last  received  by  the  cham- 
berlain from  the  common  school  fund,  be  deposited  by 
him,  together  with  the  sum  so  received  from  the  school 
fund,  in  one  of  the  incorporated  banks  in  the  city,  to  the 
credit  of  the  commissioners  of  school  money  for  the  city, 
and  subject  only  to  the  drafts  of  the  commissioners, 
drawn  payable  to  the  order  of  the  treasurers  of  the  re- 
spective societies  or  schools  entitled  thereto,  or  to  some 
person  duly  authorized  by  the  trustees  of  such  societies 
or  schools.^ 

^134.    [Sec.  119.]   The  corporation  shall,  once  in  commission- 
every  three  years,  after  the  month  of  January  in  the  year  ^meXt^. 
one  thousand  eight  hundred  and  twenty-five,  appoint 
from  the  inhabitants  of  the  city,  one  from  each  ward, 

(1)  Laws  of  1824,  p.  337,  §  1  and  2.  (2)  Ib.  1829,  chap.  265.  (3)  Ib. 
1831,  chap.  119.  By  both  of  the  acts  of  1829  and  1831,  from  which  the 
above  sections  131  and  133  are  taken,  it  is  provided  that  the  several  origi- 
nal sections  of  tliis  Article  (7th)  from  the  117th  to  the  127th  both  inclusive, 
shall  apply  to  the  moneys  by  the  said  acts  authorized  to  be  raised.  (4)  lb. 
1824,  p.  337,  §  1  and  2. 


392 


LAWS    RELATING   TO 


Vacancies 


Who  ineligi 
ble. 


Moneys  how  ,        -   .        ,    - 

distributed,  least  m  three 


When  trus- 
tees to  re- 
port ;  con 
tents  of  re- 
port. 


to  be  commissioners  of  school  money,  who  shall  hold 
their  offices  for  three  years,  and  until  others  are  appoint- 
ed in  their  places }  and  who,  before  they  enter  upon  the 
duties  thereof,  shall  take  the  oath  of  office  prescribed  in 
the  constitution  of  this  state.' 

^  135.  [Sec.  120.]  All  vacancies  occurring  in  the  of- 
fice of  commissioner,  shall  be  supplied  by  the  corpora- 
tion ;  and  each  person  appointed  to  fill  a  vacancy,  shall 
hold  his  office  for  the  residue  of  the  term  for  which  his 
predecessor  was  appointed.'* 

^  136.  [Sec.  121.1  No  trustee  or  other  officer  of  any 
so«nety  or  school,  wnich  shall  be  entitled  to  receive  a 
share  of  the  school  moneys,  shall  be  appointed  a  com- 
missioner of  school  moneys.* 

§  137.  [Sec.  122.]  The  corporation  shall,  once  at 
years,  by  ordinance,  designate  the  socie- 
ties or  schools  which  shall  be  entitled  to  receive  a  share 
of  the  school  moneys,  and  prescribe  the  rules  and  restric- 
tions under  which  such  moneys  shall  be  received  by  such 
•  societies  or  schools  respectively.  Sucii  ordinance  shall 
be  published  in  two  or  more  of  the  public  newspapers  of 
the  city.' 

^  138.  [Sec.  123.]  The  trustees  of  every  society  or 
school  thus  designated,  shall,  on  or  before  the  fifteenth 
day  of  May  in  every  year,  make  a  report  in  writing, 
under  their  corporate  seal,  and  signed  by  their  presiding 
officer  and  secretary,  to  the  commissioners  of  school  mo- 
ney ;  which  report  shall  state, 

1 .  The  average  number  of  scholars  over  four  and  un- 
der sixteen  years  of  age,  which  shall  have  been  taught, 
free  of  expense  to  such  scholars,  in  their  school  during 
the  year  preceding  the  first  of  May ;  which  number 
shall  l>e  ascertained  by  adding  to  the  number  of  children 
on  register  at  the  commencement  of  each  quarter,  the 
number  admitted  during  that  quarter,  and  the  total  shall 
be  considered  the  average  for  that  quarter : 

2.  The  average  number  that  has  actually  attended 
such  schools  during  the  year,  to  be  ascertained  by  the 
teachers  keeping  an  exact  account  of  the  number  of 
scholars  present  every  school  time,  or  half  day ;  which 
being  added  together,  and  divided  by  the  whole  number 
of  school  times  in  the  year,  shall  be  considered  the  ave- 
rage of  attending  scholars ;  which  average  shall  be  sworn 
or  affirmed  to  by  the  teachers : 


(1)  Laws  of  1824,  page  337,  §  3:  laws  of  1836,  p.  93.    (2)  lb.  1824,  p. 
338,  §  3.    (3)  lb.  §  4,  


COMMON    SCHOOLS.  393 

3.  The  times  during  which  such  schools  have  been 
kept  open  during  the  year  : 

4.  The  amount  of  moneys  last  received  from  the  com- 
missioners of  sciiool  money,  and  the  purposes  for,  and 
the  manner  in  which  the  same  shall  have  been  expend- 
ed: 

5.  A  particular  account  of  the  state  of  the  schools  un- 
der their  care,  and  of  the  property  and  affairs  of  such 
school  or  society.' 

^  139.  [Sec.  124.]  It  shall  be  the  duty  of  the  commis-  Duties  of 
sioners  of  school  money,  sioner^ 

1.  To  call  for  such  reports,  by  advertisements  in  two  " 
or  more  of  the  public  newspapers  printed  in  the  city  of 

New- York,  for  at  least  two  weeks  preceding  the  fifteenth 
day  of  May  in  every  year : 

2.  To  apportion  and  pay,  on  or  before  the  first  day  of 
June  in  every  year,  the  amount  of  money  deposited  to 
their  credit,  to  the  several  societies  or  schools  which  shall 
be  designated  by  the  ordinance  of  the  corporation  as  en- 
titled to  receive  a  share  thereof,  and  who  shall  have  com- 
plied with  the  requisitions  of  this  Article : 

3.  To  visit  and  examine  the  societies  and  schools  re- 
ceiving such  moneys,  twice  at  least  in  every  year,  and 
to  examine  their  registers  and  other  books ;  and  to  re- 
quire such  other  proof,  on  oath  or  otherwise,*  as  they    i,^  ^st 
may  think  proper,  relating  to  the  subject  matter  of  any 

report  made  by  the  trustees  of  such  societies  and  schools,  -  ■  « 

as  to  the  number  of  scholars,  and  the  appropriation  of     ' '  "^^'^n 
moneys  received  by  them,  and  as  to  all  other  matters 
connected  with  the  interests  of  said  schools  in  such  city : 

4.  To  make  a  report  to  the  corporation  and  to  the  su- 
perintendent of  common  schools,  on  or  before  the  first 
day  of  December  in  every  year,  comprising  all  the  mat- 
ters contained  in  the  reports  of  the  respective  societies 
and  schools,  for  the  year  next  preceding  the  first  day  of 
May  in  the  same  year,  and  such  other  matters  as  they 
may  deem  necessary  to  promote  the  interests  of  said 
schools  in  the  city  of  New- York : 

5.  To  cause  a  copy  of  such  report  to  be  filed  at  the 
same  time,  in  the  clerk's  office  of  the  city  and  county.^ 

g  140.  [Sec.  125.]  The  apportionment  of  school  mo-  Apportion- 
neys  shall  be  made  to  each  school  according  to  the  ave-  made.'^°^^ 
rage  number  of  children  over  the  age  of  four  and  under 
sixteen  years,  who  shall  have  actually  attended  such 
school  during  the  preceding  year ;  but  no  school  shall  be 

(1)  Laws  of  1824,  p.  338,  §  5.    (2)  lb.  6,  7  and  8. 


394 


LAWS    RELATING   TO 


When  with' 
held. 


Appeal. 


ulms-housc. 


entitled  to  a  portion  of  such  moneys,  that  has  not  been 
kept  open  at  least  nine  months  during  the  year. 

§  141.  [Sec.  126.]  Every  such  society  or  school  in 
the  city  of  New- York,  which  shall  neglect,  when  so  re- 
quired by  the  commissioners,  to  produce  satisfactory  proof 
before  the  first  day  of  June  in  any  year,  relating  to  the 
subject  matter  of  any  report  made  by  its  trustees,  shall 
forfeit  its  share  of  school  moneys  for  that  year ;  and  such 
share  shall  remain  in  the  hands  of  the  commissioners, 
to  be  distributed  by  them  as  a  part  of  the  school  moneys 
of  the  succeeding  year.' 

§  142.  [Sec.  127.]  Every  such  society  or  school  con- 
sidering itself  aggrieved  by  any  decision  of  the  commis- 
sioners of  school  money,  may  appeal  therefrom  to  the 
superintendent  of  common  schools,  whose  decision  there- 
on shall  be  final.' 
Money  to  be  S  1^3.  The  commissioners  of  school  money  for  the 
''ubiic'  ^^^  ^^^y  ®^  New- York  are  hereby  authorized  and  directed  to 
school  at  pay  to  the  public  school  society  of  New- York  the  sum  of 
two  thousand  seven  hundred  and  fifty-eight  dollars  and 
eighty-six  cents,  or  such  other  sum  as  may  have  been^ 
retained  by  them  in  the  payment  or  distribution  of  school 
moneys,  on  the  ground  that  the  school  connected  with 
the  alms-house  of  the  said  city,  and  known  as  public 
school  No.  six,  was  beyond  the  limits  of  the  county  of 
New- York.* 

,§  144.  The  said  alms-house  school  shall  be  entitled 
to  its  share  of  school  moneys  in  any  apportionment  there- 
of hereafter  to  be  made  by  the  said  commissioners.* 
^  145.  The  trustees  of  the  said  public  school  society 
cff'Sms*'^^*  of  New- York  are  hereby  authorized  to  take  charge  and 
house  school  superintend  the  management  of  the  said  alms-house 

school,  as  one  of  the  public  schools  of  the  said  city.* 
Incidental  ^  146.  The  common  council  of  the  city  and  county 
expenses  of  ^f  New-York,  are  hereby  authorized  to  pay  out  of  the 
special  school  tax  money  raised  for  the  support  of  com- 
mon schools  in  the  same,  any  sum  not  exceeding  five 
hundred  dollars  in  any  one  year,  to  the  commissioners 
of  school  money  in  said  city  and  county,  for  the  inci- 
dental expenses  attending  their  duty  as  commissioners, 
in  visiting  the  schools  entitled  to  a  portion  of  the  moneys 
raised  by  said  tax.^  * 


To  sliarc  iu 
school  mo- 
neys. 


Trustees  to 


commiS' 
•loners. 


(1)  Laws  of  1824,  p.  339,  &  7. 
of  1834,  chap.  35. 


(2)  Laws  of  1835,  chap  64.     (3)  Lawc 


■A..':  d  .^s^tii. 


COMMON    SCHOOLS.  395 

TROY. 

Art.  7,  title  2,  chap.  15,  part  1  R.  S. 

§  147.  [Sec.  128.]  The  four  first  wards  of  the  city  of  Troy;  school 
Troy  shall  be  and  remain  one  school  district,  and  shall  *''""^""' 
not  be  subject  to  alteration  by  the  commissioners  of  com- 
mon schools  for  that  city.' 

g  148.  [Sec.  129.1  The  common  council  of  the  city  inspectors 
shall  annually,  on  the  third  Tuesday  of  May,  appoint'"'^ ''""""' 
not  exceeding  thirteen  trustees,  to  manage  the  concerns 
of  the  school  in  such  district,  and  to  perform  the  duties 
of  inspectors  and  trustees  thereof,  as  required  by  law  and 
the  ordinances  of  the  common  council.'  ','*!','^"!il 

,  ^  149.  [Sec.  130.1  Every  trustee,  before  he  shall  en-  oath.     o*-« 
ter  oil  the  duties  of  his  office,  shall  take  and  subscribe 
an  oath  or  affirmation,  in  the  form  prescribed*  in  the    *  492 
constitution  of  the  state,  before  the  mayor  or  recorder,  or 
one  of  the  aldermen  or  justices  of  the  city,  and  shall  file 
the  same  in  the  office  of  the  clerk  of  the  city.' 

^  150.  [Sec.  131.]  Every  person  appointed  a  trustee.  Penalty  for 
who  shall  refuse  or  neglect  to  file  such  oath  or  affirma-  '''*'^'^'- 
tion  within  fifteen  days  after  he  shall  have  received  no- 
tice of  his  appointment,  shall  forfeit  the  sum  of  ten  dol- 
lars, to  be  recovered  in  the  manner  prescribed  in  the 
•'  Act  to  incorporate  the  city  of  Troy,"  passed  April  12th, 
1816.' 

§  151.  [Sec.  132.]    The  commissioners  of  common  school  mo. 
schools  for  the  city  shall  pay  to  the  chamberlain  of  said  plJl'  ^""^ 
city,  such  a  portion  of  the  school  moneys  to  be  distri- 
buted by  them,  as  the  district  above  designated  may  be 
entitled  to  receive,  and  the  same  shall  be  paid  over  by 
the  thamberlain  to  the  trustees  of  such  district.' 

^  152.  [Sec.  133.]  The  common  council  of  the  city  schooi- 
shall  have  power  to  raise  a  sum  not  exceeding  five  hun-  repSredl"^ 
dred  dollars  annually,  by  tax  on  the  inhabitants  of  such  *« 
district,  for  repairing  the  school-house  therein,  and  de- 
fraying the  expenses  of  the  school ;  which  tax  shall  be 
assessed  and  collected  as  the  other  taxes  of  the  city  are 
assessed  and  collected,  and  when  collected,  shall  be  paid 
to  the  chamberlain  of  the  city.' 

^  153.  [Sec.  134.]    In  the  execution  of  the  powers  Aldermen  or 
wliich,  by  the  preceding  sections,  are  vested  in  the  com-  ward^liw"!*: 
raon  council  of  the  city,  the  aldermen  of  the  fifth  and  """'      ,  Y^'' 
sixth  wards  shall  not  be  considered  as  members  of  such 
council,  nor  be  permitted  to  vote  on  any  question  that 

(1)  Laws  0/1816,  p.  147,  §40  to  46.  ,T^""TT^ 


396 


LAWS    RELATING    TO 


Tuition  to  be 

graduated, 

Ac. 


Commia- 
sioners  and 
inspectoni, 
how  chosen. 


Power*  of 
common 
council  to 
set  off  dis- 
tricts. 


To  establish 
schools  in 
the  first  dib- 
trict. 


may  arise  therein,  touching  the  concerns  of  such  district 
or  its  school.' 

§  154.  [Sec.  135.]  The  trustees  of  such  school  shall 
have  power  to  exempt  from  the  payment  of  tuition  mo- 
ney and  other  charges,  all  such  scholars  and  the  persons 
sending  them  to  school,  as  they  shall  judge  unable  to 
bear  the  charge  thereof;  and  to  fix  the  sum  which  each 
person  liable  to  pay  for  the  same  shall  be  compelled  to 
pay,  having  regard  to  the  ability  of  the  person  so  liable f 
and  to  appoint  a  collector  to  collect  such  sums  firom  the 
persons  liable  to  pay  the  same.' 

g  155.  [Sec.  136.1  There  shall  annually  be  elected, 
at  the  time  and  in  the  manner  the  other  officers  of  the 
city  are  chosen,  one  commissioner  of  common  schools  in 
each  of  the  wards  of  the  city  of  Troy ;  and  in  each  of 
the  fifth  and  sixth  wards,  three  inspectors  of  common 
schools  for  such  wards  shall  be  chosen,  at  the  sam«  time 
and  in  the  same  manner,' 

^  156.  The  mayor,  recorder,  aldermen  and  common- 
alty may,  by  resolution  to  be  entered  in  their  minutes, 
set  off  and  detach  from  the  first  school  district  of  said 
city,  as  now  established  by  law,  all  such  parts  of  the 
first  and  second  wards  of  said  city,  as  they  may  deem 
expedient,  and  annex  such  part  and  portion  of  the  said 
first  and  second  wards  so  set  off  to  the  fifth  ward  of  said 
city,  for  the  purpose  of  forming  a  school  district  to  be 
composed  odf  that  part  of  the  first  and  second  wards  of 
said  city  so  to  be  set  off,  and  a  portion  of  the  fifth  waid 
of  said  city;  and  whenever  swch  district  shall  be  set  off, 
it  shall  be  the  duty  of  the  commissioners  of  cMnmon 
schools  of  the  said  city  to  organize  a  school  district,  to 
be  composed  of  SFUch  part  of  the  said  first  school  district 
so  set  off  as  the  commissioners  of  common  schools  shall 
deem  expedient;  and  the  school-house  now  erected  near 
the  east  boundary  of  the  said  second  ward  shall  be,  con- 
tinue and  remain  the  district  school-house  of  the  said 
school  district  so  to  be  formed ;  and  the  said  district  shall 
possess  all  the  rights  and  privileges,  and  be  subject  to 
the  same  liabilities  as  the  other  school  districts  formed  in 
the  fifth  and  sixth  wards  of  the  said  city.* 

§  157.  It  shall  be  lawful  for  the  mayor,  recorder,  al- 
dermen and  commonalty  to  establish  one  or  more  schools 
in  the  first  school  district,  in  addition  to  the  school  alrea- 
dy established  by  law  in  the  said  first  school  district,  and 
to  purchase  the  necessary  land,  and  to  erect  school-hou- 


(1)  Laws  of  1816,  p.  147,  $  40  to  46.     (2)  Laws  of  1834,  chap.  296,  §  15. 


COMMON    SCHOOLS.  397 

ses  thereon ;  and  when  such  school-houses  shall  be  erect- 
ed, and  schools  established  therein,  the  same  shall  be 
under  the  control  and  supervision  of  the  common  coun- 
cil of  said  city;  and  the  trustees  to  be  annually  appoint- 
ed by  the  common  council  of  said  city  for  school  district 
number  one  shall  be  trustees  of  the  said  additional  .-.^i.  ,•.-,■ 
schools,  and  shall  possess  all  the  powers  in  relation  to 
such  additional  schools  as  they  now  possess  in  relation 
to  the  school  established  in  the  said  first  school  district ; 
and  when  such  additional  schools  shall  be  established,  it 
shall  be  the  duty  of  the  said  trustees,  under  the  direction 
of  the  common  council,  to  apportion  the  common  school 
moneys  allotted  to  the  first  school  district,  among  the 
several  schools  in  proportion,  as  nearly  as  may  be,  to 
the  number  of  scholars  instructed  in  each  of  the  said 
schools,  or  in  such  other  manner  as  shall  be  just  and 
equal.' 

§  158.  For  the  purpose  of  carrying  the  provisions  of  Taxes  for 
the  next  preceding  section  of  this  act  into  effect,  the  neys?  ™" 
mayor,  recorder,  aldermen  and  commonalty  may  levy 
and  collect,  by  tax  upon  the  estates,  real  and  personal, 
of  the  freeholders  and  inhabitants  and  taxable  property 
in  the  first,  second,  third  and  fourth  wards,  in  the  same 
manner  that  other  taxes  are  levied  and  collected,  a  sum 
of  money  not  exceeding  two  thousand  dollars  in  anyone 
year ;  or  the  said  mayor,  recorder,  aldermen  and  com- 
monalty may  defray  the  necessary  expenses  thereof  from 
the  general  funds  of  said  city,'  v  ^')  •*<!' 

HUDSON. 

Art.  7,  title  2,  chap.  15,  part  1  R.  S. 

^  159.  [Sec.  137.]  The  amount  of  monejs  flowed  Hudson ; 
to  the  city  of  Hudson  by  the  superintendent  of  common  neys°'how 
schools,  shall  be  apportioned  by  the  treasurer  of  the  a^d^P"" 
county  of  Columbia,  between  "  The  Hudson  Lancaster 
School  Society,"  and  such  common  school  districts  and  '.^ 

parts  of  districts  as  now  are  or  may  hereafter  be  organiz- 
ed without  the  bounds  of  the  compact  part  of  the  city, 
in  a  ratio  proportioned  to  the  *number  of  children  over  #493 
the  age  of  five  and  under  sixteen  years,  within  such 
compact  part,  and  the  number  of  such  children  in  such 
districts  and  parts  of  districts  respectively,  without  such 
compact  part.'' 

§  160.  [Sec.  138.1    The  treasurer  of  the  county  of  Treasurer  to 

*^ J; f •'  pay  moneys. 

(I)  Laws  of  1834,  chap.  296,  6  16  and  17.        (2)  Laws  of  1826,  p.  92; 
1817,  p.  324,  §  7. 


398  LAWS    RELATING    TO 

Columbia  shall  pay  the  amount  thus  apportioned  to  the 
Hudson  Lancaster  School  to  its  treasurer,  and  the  amount 
thus  apportioned  to  such  school  districts  and  parts  of  dis- 
tricts to  the  commissioners  of  common  schools  for  the 
city  of  Hudson.' 
How  appUed     ^  161.  [Sec.  139.]  The  amount  thus  paid  to  the  Hud- 
san  Lancaster  School  Society,  shall  be  applied  by  the 
trustees  of  that  society  to  the  education  of  such  poor  chil- 
dren belonging  to  the  city  of  Hudson  as  may  be,  in  their 
opinion,  entitled  to  gratuitous  education,  and  to  the  sup- 
port and  maintenance  of  the  school  or  schools  established 
by  such  trustees.* 
copyoiap-       ,§  162.  [Sec.  140. J    The  treasurer  of  the  county  of 
portionment  Columbia  shall  transmit  to  the  board  of  supervisors  of 
the  county,  at  their  annual  meeting,  a  certified  copy  of 
the  apportionment  made  by  him.' 
Supervisors      S  1^3.  [Sec.  141.]    The  supervisors  shall  annually 
equ^^"'       add  to  the  amount  to  be  raised  on  the  said  districts  and 
amount.       parts  of  districts  respectively,  for  defraying  tovs^n  expen- 
ses, a  sum  equal  to  the  amount  thus  apportioned  to  such 
districts  and  parts  of  districts,  with  the  addition  of  five 
cents  on  the  dollar  for  collector's  fees,  and  shall  cause  the 
same  to  be  collected  at  the  same  time  and  in  the  same 
manner  as  other  taxes  levied  on  towns  are  collected.' 
Collector         S  164.  [Sec.  142.]  The  collector  shall  pay  over  the 
how  to  pay.  moncys  so  collected  by  him,  after  deducting  five  cents 
on  the  dollar  for  his  fees,  to  the  commissioners  of  coni- 
mon  schools  for  the  city  of  Hudson.' 
Commiasion      ^  165.  [Scc.  143.]    The  Commissioners  of  common 
Sr/butc'.°  schools  for  that  city  shall  distribute  and  pay  to  the  trus- 
tees of  such  school  districts  and  parts  of  districts,  the 
amount  so  received  by  them  from  the  collector  and  the 
county  treasurer,  in  the  same  proportion  in  which  such 
moneys  were  collected  from  each  district  and  part  of  a 
district.' 
Assessors  to     ^  166.  [Sec.  144.]  To  enable  the  supervisors  of  the 
habSs.'^'couw^y  ^o  make  such  addition,  it  shall  be  the  duty  of  the 
assessors  of  the  ward  within  which  such  school  districts 
and  parts  of  districts  shall  be  situate,  to  designate  on 
their  asesssment  rolls  the  inhabitants  who  reside  withio 
each  of  such  districts  and  parts  of  districts.' 

(1)  Laws  of  1826,  p.  92;  1817,  p.  324,  $  7. 


CKi 


,J  :... 


toMUOjs  scHoofLs.'  399 

ALBANY.  '0 

Art.  7,  title  2,  chap.  15,  part  1  R.  S. 

<S  167.  rOriff.  sec.  1.1  In  each  of  the  wards  of  the  city  one  com- 

„«'  „  '■    ,  ^^        ,      11  i"        1  1  •     •  J  EQissioner 

of  Albany,  there  shall  be  elected  one  commissioner,  and  and  one  in- 
one  inspector  of  common  schools,  at  the  annual  election  chose"n  in  * 
for  supervisor,  by  the  persons  qualified  to  vote  for  town  *f'^j[',|,"^'' 
officers ;  but  the  persons  residing  west  of  Perry-street, 
shall  not  vote  for  the  said  commissioner  and  inspector  at 
such  election.* 

^  168.  [Orig.  sec.  2.]  Any  vacancy  by  death,  resig-  J[*^^^,^^^ 
nation,  or  removal  from  the  said  city,  of  any  commis- 
sioner or  inspector,  shall  be  filled  by  the  common  council 
thereof,  until  the  next  election. 

5  169.  [Orig.  sec.  3.1  The  commissioners  so  elected  Powers  of 
shall  form  a  board,  witn  power,  from  time  to  time,  to  LiXers^ 
form  the  said  city  into  school  districts,  not  exceeding  five 
in  number,  east  of  Perry-street :  They  shall  also  appoint 
three  tnistees  for  each  district,  to  hold  their  offices  for 
one  year,  and  shall  fill  any  vacancy  which  shall  hap- 
pen. 

§  170.  [Orig.  sec.  4.]  The  said  commissioners,  with  ii*- 
the  consent  of  the  common  council,  may  form  another 
or  other  school  districts  in  the  said  city  of  Albany. 

^171.  [Orig.  sec.  5.1  The  trustees  of  each  district,  or  Powers  of 
a  majority  of  them,  shall,  within  their  respective  districts  disuTas."' 
have  power  to  hire  a  school- house  or  rooms,  and  furnish 
the  same  with  necessary  fuel  and  appurtenances ;  ap- 
point a  collector ;  hire  a  teacher  or  teachers ;  fix  the  rate 
of  tuition  fees,  not  exceeding  two  dollars  a  quarter  for 
any  scholar ;  and  exempt  from  the  payment  of  teacher's 
wages  any  indigent  persons  within  the  district  they  shall 
think  proper. 

^  172.  [Orig.  sec.  6.]  The  clerk  of  the  common  coun- cierk  lo 
cil  shall  be  clerk  to  the  commissioners,  and  shall  be  sub-  sioner* 
ject  to  the  like  duties,  and  receive  the  like  compensation 
as  town  clerks  in  the  several  towns,  in  similar  cases. 

^  1 73.  [Orig.  sec.  7.]  The  superintendent  of  common  Apportion- 
schools  shall  apportion  to  the  city  and  county  of  Albany  ™hooi'Ino 
their  share  of  the  school  moneys,  according  to  the  num-^^y''"-^'" 
ber  of  children  over  five  and  under  sixteen  years  of  age 
residing  therein,  in  the  same  manner  as  to  other  coun- 
ties in  this  slate.* 

§  174.  [Orig.  sec.  8.]  The  county  treasurer  shall  an-  chamber- 

"" — ^ ceive  schQ<H 

(1)  Laws  of  1830,  chap.  240.     (2)  This  section  seems  to  be  superseded  moneys,    p, 
bjr  ^  5  and  6  of  chap.  320,  laws  of  1830,  which  was  passed  subsequent  to 
this  act.    See  ante  $  3  of  this  Title.  .  ■, : , 


400  LAWS    RELATING   TO 

nually  pay  to  the  chamberlain  of  the  city  of  Albany, 
that  part  of  the  school  moneys  apportioned  to  the  city  of 
Albany  for  the  support  of  common  schools  to  be  esta- 
blished by  this  act,  and  for  the  support  of  Lanceister 
schools  established  or  to  be  established  in  the  said  city. 
be"ra*ised'b  ^  ^^^"  t^"]  "^^^  supervisors  of  the  county  of  Albany,  at 
tax.  their  annual  meeting  in  each  year,  shall  cause  a  sum  of 

money  equal  to  twice  the  amount  of  the  money  apportion- 
ed to  the  city  from  the  common  school  fund,  together 
with  collectors'  fees,  to  be  raised,  levied  and  collected,  in 
the  same  manner  that  other  taxes  are  raised,  levied  and 
collected  ;  and  when  so  raised,  to  be  paid  to  the  cham- 
berlain, for  the  support  of  common  schools  in  the  city  of 
Albany,  to  be  apportioned  and  distributed  as  now  pro- 
vided for  by  law.* 
Chamber-  ^  ^^^-  [O^ig.  sec.  10.]  All  moneys  paid  to  the  cham^ 
lain  to  keep  bcHain  for  the  support  of  common  schools  in  the  city  of 

moneys  dis-     .  ,,  in,     ^i  ,•     •  /•  ■  i 

tinct.  Albany,  shall  be  kept  distmct  from  other  money,  and 

subject  to  the  drafts  of  the  commissioners,  and  payable 
to  the  orders  of  the  trustees  of  the  respective  school  dis- 
tricts, and  to  the  trustees  of  the  Lancaster  school  society. 
Apportion-  ^  177.  [Orig.  scc.  11.]  The  board  of  commissioners 
8chooi*mo-  shall  apportion  the  school  moneys  to  be  received  by  them, 
^y^.^y  com.  among  the  several  school  districts  and  the  Lancaster 
schools,  provided  such  schools  shall  have  been  kept  at 
least  nine  months  in  the  year,  in  the  five  districts  creat- 
ed by  the  third  [169th]  section  of  this  act,  and  at  least 
four  mouths  in  the  year  in  the  district  created  by  the  fif- 
teenth [181st]  section  thereof,  in  proportion  to  the  ave- 
rage number  of  scholars  attending  such  schools,  over 
five  and  under  sixteen  years,  who  have  actually  attend- 
ed such  schools  during  the  year ;  to  be  ascertained  by  . 
the  teachers  keeping  an  exact  account  of  the  number  of 
scholars  present  every  school  time  or  half  day,  which 
being  added  together,  and  divided  by  five  hundred,  the 
number  of  half  days  for  a  year,  shall  be  considered  the 
average  of  attending  scholars  ;  which  average  shall  be 
sworn  or  affirmed  to  by  the  teacher, 
lb.  ^  178.  [Orig.  sec,  12.]  If  a  school  shall  have  been 

kept  four  months  in  any  one  or  all  of  the  said  districts, 
for  the  year  one  thousand  eight  hundred  and  thirty,  then 
the  same  shall  participate  proportionably  in  the  said 
school  moneys  to  be  apportioned  in  the  said  city  in  the 
year  one  thousand  eight  hundred  and  thirty-one. 
General  (^  179.   [Orig.  sec.  13.1  The  commissioners,  inspec- 

powem  and         ty  l        o  j  71 

(1)  Laws  of  ia37,  chap.  369. 


COMMON    SCHOOLS.  401 

tors,  trustees  and  collectors,  shall  possess  the  like  powers,  ^'^^'^f^^  °f  ^^■ 
and  be  subject  to  the  like  duties  and  liabilities,  as  the 
same  officers  and  persons  in  the  towns  in  this  state,  ex- 
cept when  it  is  otherwise  provided  in  this  act,  and  except 
also  that  the  said  commissioners  and  inspectors  shall  not 
demand  or  receive  any  pay  for  services  under  this  act. 

S  180.  [Orig.  sec.  14.]  The  trustees  of  the  Lancaster  f^'^l^l^r 
school  society,  before  they  receive  the  moneys  apportion-  schools. 
ed  to  them,  shall  make  returns,  the  same  as  the  district 
schools  are  required  to  make. 

^  181.  [Orig.  sec.  15.]  The  inhabitants  of  the  city  of  inhabitants 
Albany,  residing  west  of  Perry-street,  and  east  of  a  pa-J^^ltniet  w 
rallel  line  three  miles  west  thereof,  qualified  to  vote  for  e'lect'^offi-''^'' 
town  officers,  shalL  on  the  Tuesday  succeedinff  the  an-  ^'^rs ;  im- 

,     ,        .      '  -  '  .  .  ,  •'  °  pose  taxe«. 

nual  election  for  supervisors  in  each  year,  meet  at  some 
convenient  place  within  said  bounds,  and  there  elect  by 
ballot  one  commissioner  and  one  inspector  of  common 
schools,  and  one  collector,  and  form  themselves  into  a 
school  district,  the  same  as  a  separate  ward,  for  all  the 
purposes  of  this  act :  And  they  are  hereby  authorized  to 
impose  and  collect  the  same  taxes  upon  the  real  and  per- 
sonal property  within  the  said  district,  for  the  hire  or 
erection  of  a  school-house,  and  the  support  of  a  teacher, 
as  if  they  were  a  separate  ward,  and  shall  be  entitled  to 
a  like  distribution  of  the  school  money.  The  first  meet- 
ing shall  be  held  at  the  house  now  occupied  by  James 
Magher ;  and  the  inhabitants  then  assembled  shall  de- 
termine when  the  next  meeting  shall  be  held.^ 

^  182.  [Orig,  sec.  1.]  The  commissioners  of  common  Money  to  be 
schools  of  the  city  of  Albany  east  of  Perry-street,  or  the  Ichooi8*ea«t 
majority  of  them,  at  any  stated  meeting  thereof,  may,  foMbree "' 
with  the  consent  of  the  common  council  of  said  city,  in  years, 
each  year,  for  the  term  of  three  years,  direct  such  sum  years  by 
to  be  raised  in  the  said  city,  for  the  support  of  common  ^'^ ''"*'' 
schools  for  the  then  ensuing  year,  as  they  may  deem 
necessary,  but  not  exceeding  a  sum  equal  to  the  amount 
apportioned  to  the  common  schools  and  Lancaster  schools 
in  said  city,  east  of  Perry -street,  from  the  common  school 
fund.* 

^  183.  [Orig.  sec.  2.]  The  supervisors  of  the  county  ib  to  je  paid 
of  Albany,  at  their  annual  meeting,  shall  cause  such  lain.  **"  ^^ 
sum  as  the  said  commissioners  shall  direct  to  be  raised, 
to  be  levied  and  collected  upon  the  real  and  personal  pro- 
perty within  the  said  city  of  Albany,  east  of  Perry-street, 

(1)  The  preceding  15  sections  are  from  ''An  act  relating  to  common 
schools  in  the  eity  of  Albany,"  passed  April  17,  1830,  chap.  240,  p.  260. 
(2)  Laws  of  1831,  chap.  111. 

26 


402  LAWS    RELATING   TO 

together  with  the  collector's  fees,  in  the  same  manner 
that  other  taxes  are  levied  and  collected ;  and  when  so 
collected  it  shall  be  paid  to  the  chamberlain  for  the  sup- 
port of  common  schools  in  the  said  city^  east  of  Perry- 
street.' 
Moneys  bow     ^  184,  [Orig.  sec.  3.]  The  commissioners  may  direct 
applied.       ^YiQ  application  of  the  moneys  thus  raised,  or  any  part 
thereof,  for  the  hire,  purchase  or  erection  of  a  school- 
house  in  any  district  in  the  said  city,   east  of  Perry- 
street,  and  with  the  consent  of  the  common  council  may 
way"be1n-    Jncreasc  the  number  of  districts  east  of  Perry-street,  from 
creased.      time  to  time,  and  alter  the  same.* 
Other  mo-        ,^185.  [Orig.  scc.  4.]  The  commissioners  shall  appor- 
porttoned*^  tion  the  moneys  received  by  them  for  the  wse  of  common 
schools  in  the  city  of  Albany,  other  than  the  moneys 
which  shall  be  raised  as  herein  provided,  among  the  se- 
veral districts  and  the  Lancaster  schools,  provided  such, 
schools  shall  have  been  kept  at  least  six  months  in  the 
year  in  the  districts  east  of  Perry-street,  and  four  months 
in  the  districts  west  of  Perry-street,  in  proportion  to  the 
average  number  of  scholars  attending  such  schools  over 
five  and  under  sixteen  years,  who  have  actually  attend- 
ed such  schools  during  the  year,  to  be  ascertained  in  the 
manner  prescribed  in  the  eleventh  [177th]  section  of  the 
act  hereby  amended,  and  shall  in  like  manner  appor- 
tion the  moneys  to  be  raised  as  herein  provided,  and  not 
otherwise  appropiiated  among  the  several  districts  and  the 
Lancaster  schools  in  the  said  city,  east  of  Perry-street.* 
Districts  ,§  186.  [Orig.  sec.  5.]  The  inhabitants  of  the  city  of 

7y^e^^^  Albany  residing  west  of  Perry-^reet,  within  any  district 
powers,  Sec.  dow  formed,  or  which  shall  hereafter  be  formed,  in  said 
city,  and  the  clerk,  trustees  and  collector  of  every  such 
district,  shall  possess  the  like  powers  and  be  subject  to 
the  like  duties  and  liabilities  as  the  inhabitants  and  same 
officers  of  school  districts  in  the  towns  in  this  state,  ex- 
cept where  it  is  otherwise  provided  in  this  act.* 
^^*^'"  , ,      S  187.  The  trustees  of  school  district  number  two  in 
trict  No.  2."  the  city  of  Albany,  or  their  successors  in  office,  are  hereby 
empowered  to  erect  a  school-building,  for  the  use  of  said 
district  school,  and  they  are  hereby  authorized  to  mort- 
gage the  lot  and  building  for  the  balance  that  may  be 
due  on  the  same,  over  and  above  the  moneys  now  in 
hands  of  said  trustees.^ 

(1)  Law8ofl83l,  chap.  1 11.  (2)  The  preceding  five  sections  are  from  "An 
act  to  amend  an  act,  entitled  '  An  act  relating  to  common  schools  in  the 
city  of  Albany,'  passed  April  11,  1831,"  chap.  Ill,  p.  153.  (3>  Laws  of 
1832.  chap.  263.  r         .  r-  w 


COMMON   SCHOOLS.  403 

^  188.  It  shall  and  may  be  lawful  for  said  trustees,  J'^*^'i*|}^°" 
or  their  successors  in  ofRce,  to  exact  ten  per  cent  on  each 
rate  bill  for  tuition,  to  be  applied  towards  the  expenses 
of  interest,  and  the  mortgage  upon  said  building.' 

§  189.  The  provisions  of  an  act  to  amend  an  act  en-  ^^l°^^^\ 
titled  "  An  act  relating  to  common  schools  in  the  city  of  i839. 
Albany,"  passed  April  11,  1831,  are  hereby  continued 
in  full  force  and  operation  for  the  term  of  five  years  from 
and  after  the  passage  of  this  act.* 

Chap.  213,  Laws  of  1837.— Passed  April  20. 

^  1.  The  board  of  supervisors  of  the  county  of  Alba- Money  to  be 
ny  are  hereby  directed,  at  their  next  annual  meeting,  "^^'^^  ^  '^^ 
and  at  each  successive  annual  meeting,  for  the  term  of 
nine  years  next  thereafter,  to  cause  in  each  successive 
year  as  aforesaid,  to  be  assessed,  levied  and  collected,  the 
sum  of  two  thousand  five  hundred  dollars,  making  in 
all  a  sum  of  twenty-five  thousand  dollars,  upon  the  tax- 
able property  in  the  city  of  Albany  east  of  Perry-street, 
for  the  purpose  of  electing  in  each  school  district  east  of 
Perry-street,  a  substantial  brick  school  building,  equal 
to  that  now  erected  in  school  district  number  two ;  which 
sum  when  collected,  shall  be  paid  to  the  chamberlain  of 
the  city  of  Albany,  and  to  be  by  him  applied  to  the  pay- 
ment of  the  moneys  that  may  be  borrowed  under  this 
act. 

^  2.  The  said  district  school  buildings  shall  be  built  Buildings  to 
of  stone  or  brick  on  the  building  lots  now  belonging  to^®^|!j|'^"® 
said  districts,  or  that  may  hereafter  be  vested  in  said 
school  districts. 

^  3.  The  common  council  of  the  city  of  Albany  are  commission- 
hereby  directed  to  appoint  three  commissioners ;  and  the  «.';« ^"  ^^. 

.  -     -^  .     .  r  r  .      .  ,  '       ,  sites  and  su- 

said  commissioners,  or  a  majority  of  them,  are  hereby  pcrintend 
authorized  to  fix  the  site,  and  to  determine  upon  the  "''*^'"ss. 
plan,  form  and  manner  of  the  construction  of  the  said 
district  school  buildings,  and  to  superintend  the  building 
of  the  same,  and  as  often  as  may  be  necessary  to  draw 
for  and  receive  the  moneys  appropriated  and  borrowed 
for  the  construction  of  the  said  district  school  buildings, 
and  to  do  all  such  other  acts  and  things  as  may  be  ne- 
cessary and  proper  to  be  done  to  complete  the  same,  and 
also  to  pay  up  any  mortgage  due  or  to  become  due  on 
any  district  school  lot  and  building  east  of  Perry-street, 
the  title  whereof  is  vested  in  the  district ;  and  the  said 

(1)  Laws  of  1832,  chap.  263.    (2)  §  13,  of  chap.  230,  laws  of  1834.  pass- 
ed May  1,  1834. 


404  LAWS    RELATING    TO 

commissioners  may,  with  the  consent  of  the  common 
council  of  said  city,  purchase  a  lot,  or  lots,  or  buildings 
for  any  school  district  east  of  Perry-street,  or  exchange 
those  now  belonging  to  the  district  for  a  more  eligible 
site,  vesting  the  title  thereof  in  said  district, 

J«wft^''  **•  S  4.  The  said  commissioners  shall,  before  they  enter 
upon  their  duties,  give  a  bond  to  the  mayor  of  said  city, 
with  sufficient  securities  to  be  approved  by  him,  in  a  pe- 
nalty of  double  the  amount  entrusted  to  them,  condition- 
ed for  the  faithful  expenditure  of  the  moneys  committed 
to  their  charge  for  the  purposes  aforesaid,  which  said 
bond  shall  be  filed  in  the  chamberlain's  office. 

TUeirpay.  g  5.  The  said  commissioners  shall  be  allowed  such 
sum  for  their  services,  not  exceeding  two  dollars  for  eve- 
ry day  actually  and  necessarily  devoted  to  the  perform- 
ance of  their  duties  under  this  act,  as  the  common  coun- 
cil shall  think  proper :  such  allowance  to  be  audited  by 
the  said  board  of  common  council.  The  said  commis- 
sioners shall  render  annually  an  account  of  their  pro- 
ceedings and  expenditures  to  the  common  council,  until 
they  shall  have  fully  executed  their  duties  under  this  act. 

L'lan  of  «25,.  ^  6.  The  Comptroller  is  hereby  authorized  to  loan  to 
the  city  of  Albany  a  sum  not  exceeding  twenty-five 
thousand  dollars,  out  of  any  moneys  now  or  hereafter 
in  the  treasury  of  this  state  belonging  to  the  capital  of 
the  common  school  fund,  on  receiving  from  the  cham- 
berlain, on  behalf  of  said  city,  a  bond,  conditioned  for 
him  as  treasurer  and  his  successor  in  office,  to  repay  the 
said  sum  in  ten  equal  annual  instalments,  together  with 
the  annual  interest  on  said  loan  from  the  time  it  is  made, 
at  the  rate  of  six  per  cent  per  annum  ;  and  which  bond 
said  chamberlain  is  hereby  authorized  to  make  and  exe- 
cute. 

Interest  of       ^  7.  The  board  of  supervisors  of  said  county,  if  the 

]oHa  provid-  gj^j^g  shall  bccome  necessary,  shall  cause  to  be  levied, 
assessed  and  collected  upon  taxable  property  in  the  city 
of  Albany  east  of  Perry-street,  in  addition  to  the  sums 
hereinbefore  directed  to  be  levied,  assessed  and  collected 
annually,  a  sum  sufficient  to  pay  the  interest  of  the  said 
sum  or  sums  to  be  loaned  ;  and  it  shall  be  the  duty  of 
the  said  chamberlain  of  the  said  city,  to  pay  the  said 
sums  of  money  herein  before  directed  to  be  levied,  assess- 
ed and  collected,  together  with  the  interest  thereon,  when 
so  collected  and  paid  to  him,  into  the  treasury  of  this 
state,  to  apply  in  payment  of  his  said  bond. 

i^wi^iwuse     S  8.  The  said  commissioners  are  hereby  authorized. 


COMMON    SCHOOLS. 


406 


with  the  consent  of  the  common  council  first  had  and 
obtained,  to  purchase  a  site,  and  erect  a  Lancaster  school- 
building,  of  the  same  dimensions  as  a  district  school- 
building,  in  order  to  comply  with  the  report  of  the  com- 
mittee of  the  common  council,  adopted  by  the  board,  in 
one  thousand  eight  hundred  and  thirty-three. 

^  9.  The  school-buildings,  and  the  lots  on  which  the  Exemption 
same  are  erected,  now  belonging  to,  or  that  may  here-  '  ™ 
after  belong  to,  any  school  district  in  said  city  of  Albany, 
shall  be  exempt  from  all  taxes  or  assessments. 

^  10.  This  act  shall  take  effect  immediately  after  the  Act  to  take 
passage  thereof.  *®***" 

Chap.  358,  Lawa  of  1837  .—Passed  May  8. 

^  1.  The  commissioners  of  common  schools  of  the  Comingsw 
city  of  Albany,  in  each  year,  shall  apportion  of  the  mo- 
neys paid  to  the  chamberlain  of  said  city,  for  the  sup- 
port of  common  schools,  one  hundred  dollars  to  each 
school  district  east  of  Perry-street,  and  twenty -five  dollars 
to  each  school  district  west  of  Perry -street ;  said  moneys 
to  remain  in  the  chamberlain's  hands  to  be  paid  to  the 
trustees  of  each  school  district,  in  quarterly  payments,  on 
the  first  day  of  April,  July,  October  and  January,  in  each 
year,  to  be  applied  for  contingent  expenses,  repairs,  fuel, 
&c.,  and  to  be  accounted  for  as  other  school  moneys  are, 
to  the  district  and  to  the  commissioners  of  common 
schools. 

^  2.  The  commissioners  of  common  schools  shall  ap-  o,"*^^^  [" 
portion  annually,  on  the  returns  of  qualified  teachers,  for  lum. 
the  instruction  of  the  children  in  the  Albany  orphan  asy- 
lum for  destitute  children,  their  proportion  of  the  public 
money  for  the  support  of  schools,  according  to  the  ele- 
venth section  of  the  act  relating  to  common  schools  in 
the  city  of  Albany,  passed  April  17, 1830,  which  money, 
when  so  apportioned  and  paid  to  the  trustees  of  the  dis- 
trict, shall  be  paid  to  such  teachers  for  teachers'  wages. 

Chap.  369,  Laws  of  1837.— Passed  Mtiy  9. 

^  2.  All  moneys  apportioned  by  the  commissioners  of  Apportion- 
common  schools,  to  the  trustees  of  a  district,  which  shall  °***'' 
have  remained  in  the  hands  of  the  chamberlain  for  one 
year  after  such  apportionment,  by  reason  of  the  trustees  ' 

neglecting  or  refusing  to  receive  the  same,  shall  be  ad- 
ded to  the  moneys  next  thereafter  to  be  apportioned  by 
the  commissioners,  and  shall  be  apportioned  and  paid 
therewith,  and  in  the  same  manner. 

^  3.  No  school  district  now  formed,  or  hereafter  to  be  Resinctioa. 


406 


LAWS    RELATING   TO 


formed,  east  of  Perry-street,  shall  have  power  to  hold  a 
district  school  meeting  to  vote  a  tax,  or  to  do  any  act  as 
a  district  meeting,  nor  shall  have  power  to  sell  or  dis- 
pose of  the  district  property,  without  a  legislative  enact- 
ment. 
Bistrict  §  4.  It  shall  be  the  duty  of  the  trustees  of  each  school 

apw>1nt«i'**  district  east  of  Perry-street  to  appoint  one  of  their  num- 
ber clerk  of  the  district,  who  shall  record  their  proceed- 
ings in  a  book  to  be  provided  for  that  purpose,  and  to 
enter  therein  true  copies  of  all  reports  made  by  the  trus- 
tees of  the  district  to  the  commissioners  of  common 
schools ;  and  to  keep  an  account  of  all  moneys  received, 
and  how  expended.  It  shall  likewise  be  the  duty  of  the 
clerk  to  keep  and  preserve  all  records,  books  and  papers 
belonging  to  his  office,  in  like  manner,  and  subject  to  the 
same  penalties  as  are  prescribed  by  law  in  relation  to 
town  clerks. 

§  5.  This  act  shall  take  effect  immediately  on  the  pas- 
sage thereof. 

SCHENECTADY. 

Art.  7,  title  2,  chap.  15,  part  1,  R.  S. 

^  190.  [Orig.  sec.  1.]  The  amount  of  moneys  allow- 
ed to  the  city  of  Schenectady,  by  the  superintendent  of 
common  schools,  shall  be  apportioned  by  the  treasurer  of 
the  county  of  Schenectady,  between  the  Schenectady 
Lancaster  school  society,  and  such  common  school  dis- 
tricts and  parts  of  districts  as  now  are  or  hereafter  may 
be  organized  without  the  bounds  of  the  compact  part  of 
the  city  of  Schenectady,  called  the  police  ;  and  in  a  ratio 
proportioned  to  the  number  of  children  over  the  age  of 
five  and  under  sixteen  years  within  such  compact  part, 
and  the  number  of  such  children  in  such  districts  and 
parts  of  districts  respectively,  without  such  compact  part.* 

^  191.  [Orig.  sec.  2.].  The  treasurer  of  the  county  of 
Schenectady,  shall  pay  the  amount  thus  apportioned  to 
the  Schenectady  Lancaster  school  society,  to  its  treasurer, 
for  the  use  of  said  society,  and  the  amount  thus  appor- 
tioned to  such  school  districts  and  parts  of  districts,  to  the 
commissioners  of  common  schools  for  the  several  wards 
of  the  city  of  Schenectady.* 

^  192.  [Orig.  sec.  3.]  The  commissioners  of  common 
schools  for  the  several  wards  of  the  said  city,  shall  dis- 
tribute and  pay  to  the  trustees  of  such  school  districts 
and  parts  of  districts,  the  amount  so  received  by  them 


Actio  take 
effect. 


Apportion- 
ment of 
school  mo- 
ney allowed 
to  Schenec- 
tady. 


Duty  of 

county 

treasurer. 


Of  tchool 

commis- 

tdoners. 


0)  Laws  of  1829,  chap.  324. 


COMMON    SCHOOLS.  407' 

from  the  county  treasury,  in  proportion  to  the  number 
of  children  residing  in  each,  over  the  age  of  five  and 
undet  that  of  sixteen  years,  as  the  same  shall  have  ap- 
peared from  the  last  annual  report  of  their  respective  trus- 
tees.' 

^  193.  [Orig.  sec.  4]  The  assessors  of  the  several  of  assessors 
wards  of  the  city  of  Scnenectady,  shall  every  year  in 
their  respective  wards,  take  a  census  of  the  children  be- 
tween the  ages  of  five  and  sixteen  years,  residing  with- 
in the  compact  part  of  said  city,  and  shall  between  the 
first  day  of  May  and  the  first  day  of  October,  in  each 
year,  make  and  transmit  a  report  of  the  same  to  the 
clerk  of  the  county  of  Schenectady.' 

^  194.  [Orig.  sec.  5.]  The  repoits  required  by  law  to  «chooi 
be  made  by  the  trustees  of  the  common  school  districts 
and  parts  of  districts,  without  the  bounds  of  the  com- 
pact part  of  the  city  of  Schenectady,  to  the  commis- 
sioners of  common  schools,  for  the  several  wards  of  the 
said  city,  shall  be  verified  by  the  afiidavit  of  the  said 
trustees,' 

§  195.  [Orig.  sec.  6.]  The  moneys  received  by  theApp<»^on- 
treasurer  of  the  county  of  Schenectady,  from  taxes  col-  ncy  couect- 
lected  in  said  city,  under  the  laws  relative  to  common  **''  ^^  ***' 
schools,  shall  be  apportioned  by  him  between  such  com- 
mon school  districts  and  parts  of  districts,  without  the 
bounds  of  the  compact  part  of  said  city,  and  the  Sche- 
nectady Lancaster  school  society,  in  the  ratio  proportioned 
to  the  amount  of  the  assessments  of  the  real  and  per- 
sonal estates  of  the  taxable  inhabitants  residing  in  such 
districts  and  parts  of  districts,  and  the  assessments  of 
all  real  estate  situate  therein  and  owned  by  persons  re- 
siding out  of  such  districts  and  parts  of  districts,  and  the 
amounts  of  the  assessments  of  the  real  and  personal  es- 
tates of  all  the  taxable  inhabitants  of  the  city,  after  de- 
ducting thereout  the  aggregate  of  the  assessments  last 
mentioned.' 

,§  196.  [Orig.  sec.  7.]  The  treasurer  of  the  county  of  ^^^^^'»»« 
Schenectady  shall  pay  the  amount  apportioned  by  virtue  treasurer 
of  the  last  preceding  sections  to  the  Schenectady  Lan- 
caster school  society,  to  its  treasurer,  for  the  use  of  said 
society,  and  the  amount  apportioned  under  said  sections 
to  such  school  districts  and  parts  of  districts,  to  the  com- 
missioners of  common  schools  for  the  several  wards  of 
said  city,  which  amount  so  paid  to  the  said  commission- 

(1)  laws  of  1329,  chap.  324. 


408 


LAWS    RELATING   TO 


How  distri- 
buted. 

Aljstracts  of 
assessment 
rolls  to  be 
furnished  by 

usiossors. 


Territory  to 
be  divideU 
by  commis- 
sioners. 


Annual  re- 
ports of 
Lancaster 
schools. 
*  495 


Pougkkeep- 
sie  village  a 
school  dis- 
trict. 


School  mo- 
ney how  to 
be  paid. 


ers,  shall  be  distributed  and  paid  by  them  in  the  manner 
provided  in  the  third  section  of  this  act.* 

^  197.  [Or'ig.  sec.  8.J  To  enable  the  treasurer  of  said 
county  to  make  the  apportionment  required  by  the  sixth 
section  of  this  act,  the  assessors  of  the  several  wards  of 
the  city  of  Schenectady  shall  annually,  within  the  time 
limited  in  the  fourth  section  of  this  act,  for  taking  the 
census  therein  mentioned,  make  out  and  deliver  to  the 
treasurer  of  said  county,  an  abstract  from  the  assess- 
ment rolls  of  their  respective  wards,  containing  the  names 
and  the  amounts  of  the  assessments,  of  the  real  and 
personal  estates  of  each  of  the  taxable  inhabitants  re- 
siding in  the  said  school  districts  or  parts  of  districts,  to- 
gether with  the  amount  of  the  assessments  of  all  real 
estate  situate  therein,  and  owned  by  persons  residing 
out  of  such  districts  or  parts  of  districts.' 

,§  198.  [Sec.  151.]  The  commissioners  of  schoob  ©f 
the  city,  shall  divide  that  portion  of  the  territory  of  the 
first  and  second  wards  of  the  city,  not  comprised  within 
the  bounds  of  the  police,  into  such  number  of  school  dis- 
tricts, as  they  may  deem  convenient,  and  may  alter  and 
regulate  such  districts,  according  to  the  provisions  of 
this  Title ;  and  the  provisions  of  this  Title  shall  apply 
to  all  districts  so  established.* 

,§  199.  [Sec.  152.1  It  shall  be  the  duty  of  the  trustees 
of  the  Lancaster  school  in  the  city  of  Albany,  of  the 
corporation  of  the  city  of  Hudson,  *and  of  the  trustees 
of  the  Schenectady  Lancaster  school  society,  to  make  an 
annual  report  to  the  superintendent  of  common  schools, 
in  such  form  as  shall  be  prescribed  by  him,  of  the  state 
and  condition  of  the  schools  for  whose  benefit  the  school 
moneys  shall  have  been  applied  in  the  cities  of  Albany, 
Hudson  and  Schenectady.^ 

POUGHKEEPSIE. 

Art.  7,  title  2,  chap.  15,  part  1,  R.  S. 

^  200.  The  village  of  Poughkeepsie  shall  form  a  per- 
manent school  district,  not  subject  to  alteration  by  the 
commissioners  of  common  schools  for  the  town  in  which 
said  village  is  situated.^ 

^201.  The  school  moneys  which  the  above  perma- 
nent district  shall  from  time  to  time,  be  entitled  to  re- 
ceive from  the  commissioners  of  common  schools  in  s£ti4 


()  Laws  of  1829,  chap.  324.  (2)  Laws  of  1827,  p.  156,  §  1.  (  )  Uw« 
of  1819,  p.  267,  §  16;  1822,  p.  287,  §  3.  (4)  Sections  2()0,  201  &202  were 
substituted  by  chap.  284,  laws  of  1830,  lor  orig.  §  153,  154  &.  155,  and 
section  203,  was  added  by  the  same  chapter. 


COMMON    SCHOOLS.  409 

town,  shall  be  paid  to  the  trustees  of  the  Poughkeepsie 
Lancaster  school  society.' 

.  §  202.  The  trustees  of  the  above  society  shall  be  so  Trustees  to 
far  considered  the  trustees  of  the  said  permanent  district,  "^^p""* 
that  they  shall  be  bound  to  report  to  the  commissioners 
of  common  schools  in  said  town,  the  number  of  chil- 
dren over  the  age  of  five  and  under  sixteen  years,  in 
said  district.'  / 

CATSKILL. 

Art.  7,  title  2,  chap,  15,  part  1,  R.  S. 

^  203.  The  commissioners  of  common  schools  for  the  catskiii 
town  of  Catskiii,  are  hereby  directed  to  pay  over  from  frlct'Nof i. 
time  to  time,  to  the  trustees  of  school  district  number 
one  in  said  town,  the  school  moneys  which  said  district 
may  be  entitled  to.' 

UTIOA.  >  ,,i^ 

Art.  7,  title  2,  chap.  15,  part  1,  R.  S.  '"tvjII*; 

§  204.  [Sec.  156.]  The  treasurer  of  the  county  ofutica; 
Oneida  shall  pay  to  the  treasurer  of  the  village  of  Utica,  neys*how 
the  proportion  of  school  moneys  apportioned  by  the  super-  p*"^- 
intendent  of  common  schools  to  the  town  of  Utica,  to  be 
expended  by  the  trustees  of  the  village,  for  the  support  of 
a  free  school  in  the  same,  for  the  education  of  such  poor 
children  therein,  as  shall,  in  the  opinion  of  the  board  of 
trustees,  be  entitled  to  gratuitous  education.* 

^205.  [Sec.  157.]  The  village  of  Utica  shall  form  Trustees  of 
one  school  district ;  and  the  trustees  of  the  village  shall  ^r^anluw* 
make  an  annual  report  to  the  clerk  of  the  county  of  "^*^"'- 
Oneida,  within  the  same  period  that  other  district  re- 
ports are  to  be  made,  of  the  number  of  children  in  said 
village  over  the  age  of  five  and  under  sixteen  years,  and 
of  the  state  and  condition  of  their  schools ;  and  shall  ac- 
count to  the  treasurer  of  the  county  of  Oneida,  for  the 
moneys  paid  to  them.* 

§  206.  [Sec.  158.]  The  trustees  of  the  village  of  Utica,  to  raise  tax 
shall  have  power  annually  to  cause  to  be  raised  andandVud!" 
levied  on  the  inhabitants  thereof,  such  sum  of  money 
not  exceeding  one  hundred  dollars,  as  shall,  in  the  opi- 
nion of  the  trustees,  be  sufficient  to  keep  the  school- 
house  erected  for  said  free  school  in  repair,  and  to  pur- 
cliase  fuel  and  other  appendages  therefor ;  which  sura 
shall  be  collected,  in  addition  to  the  sums  'authorized  to    *  496 
be  raised  in  said  village,  by  adding  to  the  tax  assessed 

(1)  Sections  200,  201  &  202  were  substituted  by  chap  284,  laws  of  1830, 
for  orig.  §  153, 154  &  155,  and  section  203,  was  added  by  the  same  chap- 
itn.    (2)  Laws  of  1817,  p.  225,  §  27  &  29.  -  .  .^ 


410  LAWS    RELATING    TO 

on  each  inhabitant  his  due  proportion,  according  to  the 
last  previous  assessment  of  the  real  and  personal  pro- 
perty of  the  inhabitants  ;  which  additional  sum  shall  be 
collected  by  the  collector  of  said  village,  as  other  village 
taxes  are  collected.' 
Trustees         ^  207.  The  trustecs  of  the  village  of  Utica  may  es- 
iTsh's^choois,  ^blish  so  many  common  schools  in  said  village,  as  in 
^-  their  opinion  the  purposes  of  education  may  require,  and 

may  distribute  the  money  received  from  the  common 
school  fund  among  such  schools,  in  such  manner  as 
they  shall  deem  most  useful.* 

't:       'V- Chap.  19,  Laws  of  1832.— Passed  February  13. 

fichooi  ^  6t5.  That  out  of  the  moneys  appropriated  from  the 

°'°°^^'  common  school  fund  to  the  county  of  Oneida,  the  city 
of  Utica  shall  have  its  proportion  with  other  towns  in 
said  county,  which  money  shall  be  paid  by  the  trea- 
surer of  said  county,  to  the  treasurer  of  said'  city,  and 
be  subject  to  the  order  of  the  common  council.  The 
common  council  shall  have  power  to  establish  so  many 
common  and  free  schools  in  said  city,  as  in  their  opinion 
the  purposes  of  education  may  require,  and  shall  dis- 
tribute the  money  received  from  the  common  school 
fund,  among  such  schools,  and  in  such  manner  and  pro- 
portions as  they  shall  deem  most  useful. 
Repeal.  S  ^^-  -^^^  former  acts  and  parts  of  acts,  relative  to  the 

incorporation  of  the  village  of  Utica,  are  hereby  repeal- 
ed ;  but  the  repeal  of  said  acts  shall  not  affect  any  act 
done,  or  right  accrued  or  established,  or  any  proceeding, 
suit  or  prosecution  had  or  commenced  previous  to  the 
time  when  such  repeal  shall  take  effect ;  but  every  such 
act,  right  and  proceeding,  shall  remain  as  valid  and  ef- 
fectual as  if  said  acts  had  remained  in  force ;  and  all 
the  officers  elected  or  appointed  under  or  by  virtue  of  the 
acts  hereby  repealed,  shall  continue  in  office  until  and  in- 
cluding the  Monday  next  after  the  first  Tuesday  in 
March  next,  unless  the  term  for  which  they,  or  any  of 
them,  were  elected  or  appointed,  shall  sooner  expire.^ 

FLATBUSH. 

Art.  7,  title  2,  chap.  15,  part  1,  R.  S. 

Fiatbush         §  208.  [Scc.  159.]  The  school  moneys  appropriated 

irSemy^  to  that  part  of  the  town  of  Fiatbush,  commonly  called 

"  the  Old  Town,"  excepting  such  portion  thereof  as  may 

(1)  Laws  of  1817,  p.  225,  §  27  &  29.  (2)  Jaws  of  1831,  chap.  136.  (3) 
By  the  64th  section  of  this  act,  it  is  proTided  that  the  suid  city  shall,  for 
all  the  purposes  contemplated  by  the  statute  entitled  "  Of  Commoa 
Schools,"  be  "  considered  one  of  the  towns  of  the  county  of  Oneida." 


CCMflMON    SCHOOLS.  411      ^ 

be  applicable  to  the  instruction  of  children  living  on  the  ^ 

borders  of  the  old  town,  and  sent  to  school  to  the  ad- 
joining towns,  shall  be  annually  paid,  by  the  several 
oflScers  whose  duty  it  shall  be  to  pay  the  same,  to  the 
trustees  of  the  Academy  of  Erasmus  Hall.' 

^209.  [Sec.  160.]  The  trustees  receiving  such  mo- How  applied. 
neys  shall  give  their  receipt  therefor,  and  shall  apply  the 
moneys  received  to  the  education  of  such  poor  children 
living  in  "  the  old  town"  and  sent  to  the  academy,  as 
in  their  opinion  shall  be  entitled  to  a  gratuitous  educa- 
tion.' 

^  210.  [Sec.  161.]  The  trustees  of  the  academy  shall  How  ac 
account  to  the  commissioners  of  common  schools  of  the  "'""'^  °'"' 
town  of  Flatbush,  for  the  faithful  application  of  the 
school  moneys  received  by  them,  and  shall  make  an 
annual  report  to  the  same  commissioners  on  the  first  day 
of  May  in  each  year,  of  the  progress  and  number  of  the 
children  of  "the  old  town"  so  taught  in  the  academy.' 

FLUSHING. 

Art.  7,  title  2,  chap.  15,  part  1,  R.  S. 

^211.  [Sec.  163.]  The  commissioners  of  common  nushinc : 
schools  of  the  town  of  Flushing  shall  pay  to  the  man-  ^^fet^on! 
agers  of  the  Free  School  Association,  in  school  district 
number  five,  the  school  moneys  apportioned  to  said  dis- 
trict so  long  as  no  common  school  is  taught  in  said  dis- 
trict according  to  the  general  provision  of  law.*^ 

^  212.  [Sec.  164.]  The  managers  of  the  free  school  To  make  an- 
association  in  such  school  district  shall  make  an  annual  ^  ""^p**"' 
report  to  such  commissioners,  within  the  same  period 
that  other  district  school  reports  are  to  be  made,  of  the 
number  of  children  in  the  district  over  the  age  of  five 
and  under  sixteen  years,  and  of  the  state  and  condition 
of  their  school ;  and  shall  account  to  such  commission- 
ers for  the  moneys  paid  to  them.** 

COVERT  AND  OVID. 

Art.  7,  title  2,  chap,  15,  part  1,  R.  S. 

^  213.  It  shall  be  the  duty  of  the  commissioners  of  coveitand 
common  schools  in  the  towns  of  Covert  and  Ovid,  coun-  ^c^umy* 
ty  of  Seneca,  to  meet  in  some  convenient  place  in  said 
towns,  on  or  before  the  first  Tuesday  of  June  in  each 
year,  to  apportion  their  public  school  money  to  the  se- 
veral districts  in  said  towns.  ^ 

fl)  Laws  of  1814,  p.  91;  orig.  see.  162  repealed  by  chap.  138,  laws  of  -Jk 

1835.    (2)  Laws  of  1818,  p.  12L    (3)  Laws  of  1829,  chap.  339.  1 


^.» 


413 


LAWS    RELATING    TO 


Coloured 
children  in 
Gates  and 
Brighton. 


Coinrais- 
Bioners  of 
commoti 

schools. 


School  lax 
how  to  be 
raised. 


Addition  ai 
ouinR. 


GATES  AND  BRIGHTON. 

Art.  7,  title  2,  chap.  15,  part  1,  R.  S. 

^  214.  The  commissioners  of  common  schools  of  the 
towns  of  Gates  and  Brighton,  in  the  county  of  Monroe, 
or  a  majority  of  them,  may  in  their  discretion  cause  the 
children  of  colour  of  the  village  of  Rochester  to  be  taught 
in  one  or  more  separate  schools.* 

^215.  The  commissioners  of  common  schools  of  the 
towns  of  Gates  and  Brighton,  shall  discharge  the  duties 
of  trustees  of  such  school,  and  shall  apportion  thereto  a 
distributive  share  of  the  moneys  lor  the  support  of  com- 
mon schools.' 

ROCHESTER. 

Title  6,  of  chap.  199,  laws  of  1834.— Passed  Apri  1 28. 

^  1.  The  mayor,  aldermen  and  assistants  of  the  city 
of  Rochester,  shall,  by  virtue  of  their  offices,  be  com- 
missioners of  common  schools  in  and  for  the  said  city, 
and  in  common  council  shall  perform  all  the  duties  of 
such  commissioners,  and  shall  have  and  possess  all  the 
rights,  powers,  and  authority  of  commissioners  of  com- 
mon schools  in  the  several  towns  of  this  state.  The 
clerk  of  the  city  shall  be  the  clerk  of  the  said  commis- 
sioners, and  shall  perform  all  the  duties  enjoined  by  law 
upon  the  clerks  of  commissioners  of  common  schools  in 
the  several  towns  of  this  state. 

^  2.  The  moneys  required  by  law  to  be  raised  by  tax 
for  the  support  of  common  schools  shall  be  levied  and 
raised  in  the  city  of  Rochester  by  the  supervisors  of  the 
county  of  Monroe,  in  the  same  manner  as  such  taxes 
are  directed  to  be  raised  in  the  several  towns  in  the  coun- 
ty of  Monroe ;  and  the  amount  raised  in  the  said  city 
shall  be  paid  to  the  treasurer  thereof:  and  directions  to 
that  effect  shall  be  given  in  the  warrants  delivered  to  the 
collectors  in  the  said  city,  and  the  sum  apportioned  to 
the  said  city  by  the  superintendent  of  common  schools 
shall  be  paid  to  the  treasurer  of  the  said  city  by  the  trea- 
surer of  Monroe  county. 

^  3.  The  common  council  shall  have  the  same  pow- 
er to  raise  any  additional  sum  for  the  support  of  com- 
mon schools,  as  is  given  by  law  to  the  towns  of  the  state; 
which  shall  be  assessed,  levied  and  collected,  and  paid 

(1)  Laws  of  1832,  chap.  136.  By  the  act  to  incorporate  the  Rochester 
High  School,  laws  of  1827,  chap.  70,  p.  56,  districts  four  and  fourteen  in 
Brighton,  are  united  into  one  and  placed  under  the  charge  of  the  trustees 
of  the  high  BchooL 


COMMON    SCHOOLS.  413 

info  the  city  treasury,  in  the  same  manner  as  the  surris 
raised  to  defray  the  general  expenses  thereof. 
■    ^  4.  The  moneys  so  paid  into  the  city  treasury  shall  ^/^^chcJoi"" 
be  distributed  among  the  several  school  districts  therein,  money. 
by  the  common  council,  in  the  same  manner  prescribed 
by  law  in  relation  to  the  distribution  of  common  school    "^''  ''"*f,* 
moneys  among  the  districts  of  towns,  and  the  said  com- 
mon council  shall  receive  and  make  the  several  returns 
and  reports  required  by  law  of  commissioners  of  common 
schools  in  towns,  and  the  members  thereof  shall  be  in- 
dividually liable  for  any  neglect  of  duty  in  the  premises, 
in  the  same  manner  as  town  commissioners  of  schools. 

^  5.  The  common  council  shall  annually  appoint  a  sehooi 
number  of  inspectors  of  common  schools  in  the  said  city, '''^p*'^'*"'" 
not  exceeding  twelve,  and  not  less  than  five,  who  shall 
possess  all  the  powers  and  authority  of  inspectors  of  com- 
mon schools  elected  by  any  town,  and  shall  be  subject 
to  the  like  duties  and  obligations.  In  case  of  the  refusal 
of  any  person  so  appointed  to  serve,  or  in  case  of  a  va- 
cancy in  the  office,  the  common  council  shall,  from  time 
to  time,  appoint  others,  who  shall  have  the  like  powers 
and  be  subject  to  the  same  duties. 

^6.  The  freeholders  and  inhabitants  of  any  school  High  schools 
district  in  the  said  city  may,  by  a  vote  of  two-thirds  of^^y^^e  ^re- 
the  persons  present,  and  entitled  to  vote  at  any  meeting 
of  such  district  convened  after  notice  of  the  object  of 
such  meeting  shall  have  been  published  for  one  week  in 
some  newspaper  of  the  said  city,  and  after  the  said  no- 
tice shall  have  been  served  on  every  such  freeholder  or 
inhabitant,  by  reading  the  same  to  him,  or  in  case  of 
his  absence,  by  leaving  the  same  at  his  place  of  resi- 
dence, at  least  five  days  previous  to  such  meeting,  de- 
termine either  separately  oi  in  conjunction  with  any  other 
school  district  or  districts  in  the  said  city,  to  have  a  high 
school  created  for  such  district  or  districts  as  shall  so  agree 
to  unite  for  that  purpose ;  and  may  vote  a  sum,  not  ex- 
ceeding five  thousand  dollars,  to  be  raised  for  erecting  a 
building  for  such  high  school ;  and  on  evidence  of  such 
vote,  and  of  such  notice  having  been  published  and 
served  as  above  provided,  being  presented  to  the  common 
council,  they  may,  in  their  discretion,  authorize  the  erec- 
tion of  a  high  school  in  such  district,  or  may  authorize 
the  several  districts  so  agreeing  to  be  erected  in  one  dis- 
trict, which  shall  thereafter  form  one  school  district; 
and  all  the  property,  rights  and  interests  of  the  several 
districts  so  united  shall  belong  to,  and  be  vested  in, 


t 


414 


LAWS   RELATING   TO 


School  hou- 
ses. 


Rights  and 
privileges. 


Rochester 
high  sch»ol. 


To  make  re- 
ports. 


Number  of 
schools  to  be 
published 
yearly. 


Overseers 

of  the  poor. 


the  trustees  of  the  said  united  districts ;  and  the  trus- 
tees thereof  shall  have  all  the  powers  of  trustees  of 
school  districts ;  shall  be  elected  in  the  same  manner,  and 
shall  be  subject  to  all  the  duties  and  obligations  of  trus- 
tees of  common  school  districts. 

^  7.  Upon  such  authority  being  given,  the  trustees 
of  such  district  shall  proceed  to  raise  the  sum  which 
shall  have  been  voted  at  such  district  meeting  or  meet- 
ings for  the  erection  of  a  building,  in  the  same  manner 
that  moneys  voted  by  school  districts  to  build  school- 
houses,  are  directed  by  law  to  be  raised ;  and  the  same 
proceedings  shall  be  had  in  all  respects ;  and  the  mo- 
neys so  raised  shall  be  expended  by  the  trustees  and  ac- 
counted for  by  them  to  the  common  council. 

^  8.  Such  school  district  shall  have  all  the  rights,  pri- 
vileges and  benefits  of  a  common  school  district,  and  the 
freeholders  and  inhabitants  thereof  may  vote  a  sum  not 
exceeding  seventy-five  dollars  in  each  year,  to  be  raised 
for  the  purpose  of  keeping  such  building  in  repair,  which 
shall  be  assessed  and  collected  in  the  same  manner  as 
sums  voted  by  district  meetings  for  the  repair  of  school- 
houses,  are  directed  by  law  to  be  raised  and  collected. 

^  9.  The  three  last  preceding  sections  shall  not  ex- 
tend to  any  school  district  in  which  there  is  now  a  high 
school,  or  which  is  attached  to  the  Rochester  high  school. 

^  10.  It  shall  be  the  duty  of  the  trustees  of  the  Ro- 
chester high  school  to  make  the  reports  and  returns 
which  by  law  they  are  required  to  make  as  trustees  of 
a  school  district,  to  the  common  council,  as  commission- 
ers of  common  schools. 

^11.  The  common  council  shall  annually  publish  in 
some  newspaper  of  the  city,  a  statement  of  the  number 
of  high  schools  and  common  schools  in  the  said  city ; 
the  number  of  pupils  instructed  therein  the  year  preced- 
ing; the  several  branches  of  education  pursued  by  them; 
and  the  receipts  and  expenditures  of  each  school,  spe- 
cifying the  sources  of  such  receipts,  and  the  objects  of 
such  expenditures. 

BROOKLYN. 

Chap.  93,  laws  uf  18S4.-~  Passed  April  8. 

^  65.  There  shall  be  elected  in  the  city,  at  the  an- 
nual city  election  to  be  held  therein,  by  general  election 
of  the  electors  of  the  several  wards,  three  overseers  of 
the  poor,  two  of  whom  shall  be  taken  from  the  portion 
of  the  city  constituting  the  first  seven  wards,  and  the 
other  from  the  portion  thereof  constituting  the  eighth 


COMMON    SCHOOLS.  415 

and  ninth  wards.    There  shall  also  be  elected  in  like  commis- 
manner,  three  commissioners  and   three  inspectors  of  fn°p|"o''rs'* 
common  schools,  one  of  which  commissioners  and  one  of  common 
of  which  inspectors  shall  be  taken  from  the  last  men- 
tioned portion,  and  the  others  from  the  first  mentioned 
portion  of  the  city.     All  the  provisions  of  the  Revised 
Statutes,  and  of  any  acts  amendatory  thereof,  in  relation  *" 

to  the  relief  and  support  of  indigent  persons  and  of  com- 
mon schools,  which  now  apply  to  the  town  or  village  of 
Brooklyn,  shall  be  deemed  to  apply  to  the  city  of  Brook- 
lyn. The  common  council  shall  be  and  are  hereby  con- 
stituted a  board  of  auditors  in  lieu  of  the  board  of  town 
auditors,  and  they  shall  have  power  to  require  the  exhi- 
bition and  rendering  of  books  and  accounts  to  them  from 
time  to  time. 

Chap.  129,  laws  of  1835.— Passed  April  23. 

S  15.  The  law,  in  relation  to  the  common  schools  ^^",^3" 
now  established  or  hereafter  to  be  established  in  the  said 
city,  shall  be  so  far  altered  and  changed,  that  the  com- 
mon council  of  the  said  city  shall  have  the  power  to  ap- 
point annually  on  the  first  Tuesday  of  February,  in 
each  school  district  now  laid  out,  or  hereafter  to  be  laid 
out  in  the  said  city,  three  trustees  of  common  schools,, 
and  for  the  whole  city,  three  inspectors  and  three  com- 
missioners of  such  schools ;  and  that  from  and  after  the 
passage  of  this  act,  no  trustees,  inspectors  or  commis- 
sioners of  common  schools  shall  be  elected  in  the  said 
city;  but  those  already  elected  shall  hold  their  respective 
ofiices  until  others  are  appointed  in  their  place  and  have 
taken  the  oath  which  may  be  required  by  law ;  and  that 
all  the  legal  and  statutory  provisions  in  relation  to  trus- 
tees, inspectors  and  commissioners  of  common  schools 
now  in  existence,  or  hereafter  to  be  passed  or  enacted, 
shall  extend  and  apply  to  and  govern  the  said  trustees, 
inspectors  and  commissioners  of  common  schools  to  be 
appointed  as  aforesaid  under  this  act,  except  so  far  as 
the  same  may  be  changed  or  modified  by  the  provisions 
of  this  act. 

g  16.  The  trustees  of  the  respective  school  districts  in  Trustees  to 
the  city  shall,  on  or  before  the  first  day  of  July  in  each 
year,  report  to  the  common  council  such  amount  of  mo- 
ney as  they  shall  deem  necesary  for  the  support  of  the 
common  schools  in  their  respective  districts  for  the  cur- 
rent year,  not  exceeding  eight  hundred  dollars  for  each 
district  beyond  the  sum  necessary  to  entitle  said  district 
to  a  distributive  share  of  the  common  school  fund,  and 


<* 


416 


LAtrS   RELATINO   Tt) 


School 
b*<i8es. 


such  amount,  when  approved  of  by  the  common  coun- 
cil, shall  be  assessed  and  levied  on  all  the  taxable  pro- 
perty within  the  city  in  the  same  manner  as  the  other 
taxes  for  the  various  public  purposes  of  the  city  are  as- 
sessed and  levied ;  and  the  same  shall  be  collected  by 
the  collectors  of  taxes  in  the  city  in  the  same  manner  as 
the  other  taxes  of  the  city  are  collected,  (a  separate  co- 
lumn being  made  in  their  books  for  this  purpose,)  and 
shall  be  paid  by  them  to  the  commissioners  of  common 
schools  in  the  city,  to  be  by  them  distributed  to  and 
among  the  trustees  of  each  district  in  proportion  to  the 
amount  collected  for  each  of  said  districts ;  and  for  the 
purpose  of  enforcing  the  collecting  of  the  same,  the  col- 
lectors are  hereby  invested  \rith  the  same  power  which 
they  now  have,  and  may  at  any  time  hereafter  have, 
to  enforce  the  collection  for  the  other  taxes  of  the  city. 

Chap.  93,  laws  of  J  836. —Passed  April  2. 

^  1.  The  supervisors  and  the  common  council  of  the 
city  of  Brooklyn,  shall  have  power  at  their  annual  joint 
meeting,  to  determine  what  sums  in  addition  to  that 
which  they  determine  to  be  raised  for  the  various  public 
purposes  of  the  said  city,  is  necessary  to  be  raised  for  the 
purchase  of  a  suitable  site  for  a  school  or  school-houses 
in  any  of  the  school  districts  in  said  city,  and  for  the 
building  of  g.  suitable  school-house  or  school-houses,  in 
any  of  the  said  districts ;  which  sum  or  sums  shall  be 
assessed,  levied  and  collected  upon  the  taxable  property 
within  the  school  districts  respectively,  where  such  school- 
house  shall  be  built,  in  the  same  manner  as  the  other 
taxes  of  the  said  city  are  assessed,  levied  and  collected, 
(a  separate  column  being  made  in  the  assessment  rolls 
for  this  purpose)  and  shall  be  paid  by  the  said  collector 
to  the  commissioners  of  common  schools  in  and  for  said 
city,  to  be  by  them  distributed  to  the  trustees  of  each 
district,  according  to  the  amount  collected  in  and  for  each 
of  said  districts ;  and  for  the  purpose  of  enforcmg  the 
collecting  of  the  same,  the  collectors  of  the  said  city  are 
hereby  invested  with  the  same  power  which  they  now 
have,  and  may  at  any  time  hereafter  have,  to  enforce 
the  collection  of  the  other  taxes  of  the  said  city. 

NEWBURGH. 

Chap.  144,  laws  of  1835.— Passed  April  23. 

School  for        ^  1.  It  shall  be  lawful  for  the  trustees  of  school  dis- 
b^ck  child-  ^j.j^j  number  thirteen  in  the  town  of  Newburgh,  known 


<^OMMbN   SCHOOLS.  417 

aleo  as  the  trustees  of  the  Newburgh  High  School,  to 
establish  and  keep  a  school  for  the  instruction  of  black 
children,  separate  and  apart  from  their  high  sdiool,  and 
to  employ  competent  teachers  to  take  charge  of  such 
school. 

§  2.  The  said  trustees  shall  set  apart  for  the  payment  |^^y°^^^ 
•of  the  compensation  to  such  teachers,  so  much  of  the 
public  moneys  received  by  them,  as  shall  bear  the  same 
proportion  to  the  whole  sum,  as  the  number  of  black 
children  annually  reported  to  the  commissioners  of  com- 
mon schools  in  said  town,  as  resident  in  said  district, 
shall  bear  to  the  whole  number  of  children  reported  by 
«aid  trustees. 

^  3.  The  said  trustees  in  disbursing  the  moneys  so  Reatrktiotw. 
set  apart  for  said  school,  shall  be  subject  to  all  the  re- 
strictions and  provisions  contained  in  the  act  relative  to 
•common  schools. 

GENERAL  PROVISION, 

Art.  7,  title  2,  chap.  15,  part  1,  U.  S. 

^  223.  [Sec.  165,]  In  all  cases  where  no  special  pro-  oYrnls  ™L 
vision  is  made,  the  general  provisions,  regulations  and 
penalties  of  this  Title  shall  be  construed  to  apply  to  the 
several  cities,  villages  and  towns,  to  which  this  Article 
relates,  and  to  their  several  commissioners  and  inspec- 
tors of  common  schools,  and  trustees  and  collectors  of 
school  districts.' 

AMENDMENTS. 

Chap.  241,  laws  of  1337.— Passed  Ai»U  22. 

^1,  It  shall  be  the  duty  of  trustees  of  school  districts  how^to*^^ 
to  state  in  their  annual  reports,  the  amount  of  money  p""^ 
paid  for  teachers'  wages  in  addition  to  the  public  mon^  • 

paid  therefor,  and  such  other  information  in  relation  to 
the  schools  £md  the  districts  as  the  superintendent  of  com- 
mon schools  may  from  time  to  time  require. 

S  2.  It  shall  be  the  duty  of  the  commissioners  of  com-  comniis- 

**'        ,  .        ,  •' .  ,  ,  sioiiers  now 

mon  schools  to  state  m  their  annual  imports  the  amount  to  report. 
of  money  paid  for  teachers'  wages  in  addition  to  the  pub- 
lic money  paid  therefor,  in  the  districts,  parts  of  districts, 
and  neighborhoods  from  which  reports  shall  have  been 
received  by  them  or  their  immediate  predecessors  in  of- 
fice, wiih  such  other  information  as  the  superintendent 
of  common  schools  may  from  time  to  time  require,  in 

(I)  Lawn  «f  1818,  p.  12L 

27 


41b  UIWS    RELATING    TO 

felation  to  the  districts  and  schools .  within  their  town. 

^•"w'^"  ^^'  Commissbners  who  negiect  to  furnish  the  infor- 
mation required  by  the  last  preceding  section,  shall  seve- 
rally forfeit  to  their  lown^  for  the,  use  of  the  cotnmon 
ischools  therein,  the  sum  of  ten  dolJars,  to  be  sued  for  by 
the  supervisor  of  the  town. 

t^ertwu  (^  4.  The  institutions  in  which  departments  for  the 

academies  tiv .      -^  ■  ^  i        r  i  i     n  i 

report  about  iiistruction  of  commou  schoof  teachers  are  or  shall  be  es- 
schooTtea.  h-  tablishcd,  shall  make  to  the  superintendent  of  common 
*"*•  schools  aft  annual  report  of  the  corxlition  of  those  de- 

partments, in  such  form  and  containing  such  infoima- 
tion  as  he  may  from  time  to  time  requiie ;  and  in  re- 
spect to  the  organization  and  management  of  the  de- 
partn>er>{s  and  the  course  of  sfitidies  therein,  the  said  in- 
stitutions shall  be  governed  by  such  direction  as  he  may 
prescribe;  and  he  may  direct  the  said  form*  and  direc- 
tion to  l>e  printed  by  the  state  printer. 
i-a>  of  coin.      ^  5.  Commissroners  of  common  schools  shall  be  ett- 
loncrs.  jjijgj  j^  receive  one  dollar  per  day  for  every  day  actually 
and  necessarily  devoted  by  tbem  in  their  official  capacitj- 
to  the  service  of  the  town  for  which  they  may  be  chosen^ 
the  same  to  be  paid  in  like  manner  as  other  tow'n  officer? 
are  paid. 
ioookof  ^6.  The-  inhabitants  of  school  districts  shall  have 

be"purciias?^  powcr,  whenever  they  shall  be  lawfully  assembled  at 
'^-  any  district  meeting,  to  vote  a  tax  for  the  purchase  of  a 

book  for  the  purpose  of  recording  the  proceedings  of  their 
re-spective  districts. 


fOWN  SCHOOL  FUND. 


AN  ACT  relative  td  moneys  in,  the  hattds  ofoverseer» 
ef  the  'poor. 

Passed  April  27,  1829. 

.J    .  The  People  of  the  State  of  Neur-  Yorft,  represented 

in  Senate  and  Assembly ^  do  enact  as  follows  : 

l»Jwey  iiow  ^1.  It  shall  be  lawful  for  the  inhabitants  of  any  tow» 
jM-iatorf!^'^**^  in  such  counties  as  have  abolished  the  distinction  be- 
tween county  and  town  paupers,  and  in  such  counties 
as  may  hereafter  abolish  such  distinction,  at  any  ar>- 
nual  or  special  town  meeting  to  appropriate  all  or  any 
part  of  the  moneys  and  fiinds  remaining  in  the  hands  of 
the  overseers  of  the  poor  of  such  town  after  such  aboU- 


i 


COMMON    SCHOOLS.  419 

lion,  to  such  objects,  and  for  such  purposes,  as  shall  be 
determinetl  on  at  such  meefing^. 

^  2.  If  any  sucli  meeting  shall  appropriate  such  mo- School  fuiui. 
ney  or  funds  for  the  benefit  of  common  schools  in  their 
town,  the  money  so  appropriated  shall  be  denominated 
"  The  common  school  fund  of  such  town,"  and  shall  be 
under  the  care  and  superintendence  of  the  commission- 
ers of  common  schools  of  said  town. 

§  3.  If  any  such  meetins^  shall  appropriate  such  mo-  Money  and 
ney  or  funds  for  the  Isenefit  of  common  schools,  after  be -itiiverwi 
such  appropriation  shall  have  been  made,  and  after  the  l^minSI'ioa- 
commissioners  of  common  schools  shall  have  taken  the  ^^*- 
oath  of  office,  the  overseers  of  the  poor  of  such  towns 
shall  then  pay  over  and  deliver  to  the  said  commission- 
ers, such  moneys,  bonds,  mortgages,  notes  and  other  se- 
curities, remaining  in  their  hands  as  such  overseers  of 
the  poor,  as  will  comport  with  the  appropriation  made 
for  the  benefit  of  common  schools  of  their  town. 

§  4.  The  said  commissioners  of  common  schools  may  ^'*»- 
sue  for  and  collect  in  their  name  of  office,  the  money 
due  or  to  become  due  on  such  bonds,  mortgages,  notes 
or  other  securities,  and  also  all  other  securities  by  them 
taken  under  the  provisions  of  (his  act. 

^  5.  The  moneys,  bonds,  mortgages,  notes  and  other  perm«ne« 
securities  aforesaid,  shall  continue  and  be  a  permanent  ^'■^*^'  '""^ 
fund,  to  be  denominated  the  common  school  fund  of  the 
town  appropriating  the  same,  the  annual  interest  of 
which  shall  be  applied  to  the  support  of  common  schools 
in  such  towns,  unless  the  inhabitants  of  such  town,  in  an- 
nual town  meeting,  shall  make  a  different  disposition  of 
the  whole  of  the  principal  and  interest,  or  any  part  there- 
of, for  the  benefit  of  the  common  schools  of  such  town. 

§  6.  The  said  commissioners  of  common  schools  when-  iA>ansoa 
ever  the  whole  or  any  part  of  the  principal  of  said  fund  ^"^^. 
shall  come  to  their  hands,  shall  loan  the  same  on  bond, 
secured  by  a  mortgage  on  real  estate  of  double  the  value 
of  the  moneys  so  loaned,  exclusive  of  buildings  or  artifi- 
cial erections  thereon. 

^  7.  The  said  commissioners  of  common  schools  may  Foreclosure 
purchase  in  the  estate  on  which  the  fund  shall  have"  '°**'^'^** 
been  secured,  upon  the  foreclosure  of  any  mortgage,  and 
may  hold  and  convey  the  same  for  the  use  of  said  fund. 

^  8.  The  said  commissioners  of  common  schools  shall  ^"'^**»  ^ 
retain  the  interest  of  said  common  school  fimd,  which  ^ 

shall  be  distributed  and  applied  to  the  support  of  com- 
mon schools  of  such  town,  in  like  manner  as  the  public     ■ 


420  LAWS    RELATING   TO 

money  for  the  support  of  common  schools  shall  be  distri- 
buted by  law. 
comraiarfon-      ^^9.  The  said  Commissioners  of  common  pchools  ehall 
countaonu   account  annually,  in  such  manner  and  at  such  time  as 
*^"  town  officers  are  required  by  law  to  accoimt,  and  shall 

deliver  to  their  succes-sors  in  office  all  nione}s,  books,  se- 
curities and  papers  whatsoever,  relating  to  said  fund,  and 
shall  take  a  receipt  therefor,  and  file  the  same  with  the 
town  clerk. 


Lott  reserwd  for  the  sttppott  of  the  Goitpel  and  Schools,  and  the 
funds  arising  therefrom. 

The  acts  passed  in  1789,  for  the  sale  of  lands  belong- 
ing to  the  people  of  this  stale,  required  the  surveyor-ge- 
neral to  reserve  in  each  township,  one  lot  for  the  support 
of  the  gospel  and  one  lot  for  the  use  of  schools  in  such 
township.     3d  R.  S.  p.  242. 

The  following  is  a  list  of  the  principal  reservations  of 
this  nature,  viz : 

One  lot  of  550  acres  in  each  of  the  28  townships  ia 
the  military  tract. 

Forty  lots  of  250  acres  each  in  the  twenty  townships 
west  of  the  Unadilla  river,  being  10,000  acres. 

One  lot  of  640  acres  in  each  of  the  townships  of  Fay- 
ette, Clinton,  Greene,  Warren,  Chenango,  Sidney  and 
Hampden,  in  the  counties  of  Broome  and  Chenango. 

Ten  lots  of  040  acres  each  in  the  townships  along  the 
St.  Lawrence. 

Sixteen  lots  of  640  acres  each  in  Tolten  and  Cross- 
field's  purchase. 

In  the  township  of  Plattsburgh  400  acres  were  reserv- 
ed for  the  use  of  a  minister  of  the  gospel,  and  460  acre* 
for  the  use  of  a  public  school  or  schools  in  the  said  tow»- 
ship. 

In  the  township  of  Benson  640  acres  were  reserved 
for  gospel  and  schools. 

By  an  act  passed  in  1798,  in  relation  to  gospel  and 
school  lots,  it  is  provided,  sec.  3,  "That  the  moneys 
arising  from  the  leasing  of  the  said  lots  of  land  as  afore- 
said, and  from  the  trespasses  aforesaid,  shall  be  applied 
to  the  use  of  schools  or  support  of  the  gospel,  in  the  ori- 
ginal townships  as  surveyed,  in  which  such  lots  shall  be 
respectively  situated,  and  for  no  other  purpose ;  which 
said  application  shall  be  made  either  for  sc1k)oIs  or  g09- 


COMMON    SCHOOLS.  421 

pel,  or  both,  and  in  such  way  and  manner  as  the  free- 
holders and  inhabitants  of  the  towns  in  which  the  same 
lands  shall  lie,  shall  in  legal  town  meeting  from  time  to 
time  direct,  order  and  appoint."     3d  R.  S.  p.  244. 

By  an  act  passed  in  1808,  the  act  of  1798  was  ex- 
tended to  all  the  townships  where  lots  of  land  are  reserv- 
ed for  the  support  of  gospel  and  schools,  and  the  follow* 
ing  provision  was  added  : 

"^  1.  Be  it  e7iacted,  ^c.  That  the  moneys  arising 
from  the  annual  rents  and  profits  of  the  gospel  lota  in 
each  township,  shall  be  equally  divided  by  the  supervi- 
sor and  commissioners  appointed  in  each  township,  be- 
tween the  several  religious  societies  legally  organized  in 
such  township,  and  that  the  moneys  arising  from  the 
annual  rents  and  profits  of  the  several  school  lots  shall 
be  distributed  among  the  schools  kept  in  each  respective 
township  by  teachers  to  be  approved  of  by  the  supervisor 
and  commissioners  constituted  by  the  act  to  which  this 
is  an  amendment,  or  a  majority  of  them,  in  said  town- 
ship, in  proportion  to  the  aggregate  luimbei  of  days 
which  the  scholars  in  each  respective  school  shall  have 
respectively  attended  such  schools  in  the  year  immedi- 
ately preceding  such  division."     3d  R.  S.  p.  245. 

The  fourth  section  of  an  act  concerning  the  gospel  and 
school  lots,  passed  in  1813,  is  as  follows; 

''And  be  ii further  enacted,  That  the  rents,  issues 
and  profits  of  the  aforesaid  lands,  and  the  annual  inter- 
est of  the  moneys  arising  from  the  sale  thereof,  shall  b© 
applied  by  the  said  trustees  for  the  time  being,  to  the 
support  of  the  gospel  and  schools  in  their  several  towns 
in  such  manner  as  the  freeholders  and  inhabitants  of 
the  towns  respectively,  at  their  annual  town  meeting, 
shall  order  and  direct,  or  as  the  legislature  shall  prescribe 
by  law."     Session  Laws  of  1813,  p.  157. 

In  1819  an  act  was  passed  in  relation  to  the  gospel 
and  school  lots,  which  contains  the  following  section  : 

"^  2,  And  be  it  further  enacted,  That  all  moneys 
now  due  or  hereafter  to  become  due,  and  which  shall 
have  come  into  the  hands  of  the  aforesaid  commission- 
era  of  public  lots,  and  have  not  been  applied  and  paid 
over  to  religious  societies,  shall  be  apportioned  among 
the  several  sciiool  districts  in  the  several  towns  in  the 


422 


LAWS   RELATING  TO 


aforementioned  counties,*  any  thing  in  the  acts  liereto- 
fore  passed  to  the  contrary  notwithstanding."  3d  R.  S. 
p.  245. 


Trustees  a 
eoTvoration. 


Tb  dire 
boads. 


Thoir  pow- 
ers and  ilu- 
rim. 


The  following  are  the  provisions  adopted  in  the  Re- 
vised Statutes,  in  relation  to  the  gospel  and  school  lots, 
the  powers  and  duties  of  the  trustees  of  those  lots,  and 
the  funds  arising  from  them  : 

TITLE  IV.  CHAPTER  XV.  1  R.  S.  p.  497. 

OF  THE  GOSPEI.  AND  SCHOOL  LOTS. 

8xc.  1.  Trustees  of  gospel  or  school  lots,  a  corporation  for  certain  pur- 
poses. 

2.  Such  trustees  to  eive  bond. 

3.  Tlieir  powers  and  duties. 

4.  Auditors  of  town  tu  report  upon  accounts  of  trustees  of  gospel  and 

scliotil  lots. 
^  &.  6.  Lands  and  money  arising  therefrom,  how  disposed  of  upon 

division  of  town. 
7.  When  the  share  of  any  town  is  to  be  paid  to  supervisor.  &.C. 

^  1.  The  trustees  elected  in  any  town  in  this  state, 
having  lands  assigned  to  it  for  the  support  of  the  gospel 
or  of  schools,  or  of  both,  shall  be  a  corporation  for  the 
purposes  of  their  office,  by  the  name  of  '-The  trustees 
of  the  gospel  and  school  lot,"  in  that  town  for  which 
they  are  elected. 

S  2.  Before  they  enter  on  the  duties  of  their  office, 
they  shall  execute  a  bond  to  the  sujjervisor  of  the  town, 
in  such  penalty  and  with  such  sureties  as  such  supervi- 
sor shall  approve,  for. the  faithful  performance  of  such 
duties. 

^  3.  The  trustees,  besides  the  ordinary  powers  of  a 
corporation,  shall  have  power,  and  it  shall  be  their  duty, 

1.  To  take  and  hold  possession  of  tlie  gospel  arid 
school  lot  of  their  town  : 

2.  To  le£ise  the  same  for  such  time  not  exceediiiig 
twenty-one  years,  and  upon  such  conditions,  as  they, 
shall  deem  expedient : 

3.  To  sell  the  same  with  the  advice  and  consent  of 
the  inhabitants  of  the  town,  in  town  meeting  assembled,, 
for  such  price  and  upon  such  terms  of  credit  as  shall 
ap^ar  to  them  most  advantageous : 

4.  To  invest  the  proceeds  of  such  sales  in  loans,  se- 
cured by  bond  and  mortgage  upon  unincumbered  real 
property  of  the  value  of  double  the  amount  loaned  : 

*  Note. — The  counties  named  in  the  act,  are  Ooondaea,  Cayuga  sod;. 
Seneca.    S«c  also  act  of  1807,  p.  329,  Session  Laws  of  that  year. 


COMMON    SCrtOOLS.  423" 

5v  To  purchase  the  property  so  mortgaged  upon  a 
foreclosure,  and  to  hold  and  convey  the  property  so  pur- 
chased whenever  it  shall  become  necessary: 

6.  To  reloan  the  amount  of  such  loans  repaid  to  them, 
upon  the  like  security . 

7.  To  apply  the  rents  and  profits  of  such  lots,  and  the 
interest  of  tlic  money  arising  from  the  sale  thereof,  to 
the  support  of  the  gospel  and  schools,  or  either,  as  may 
be  provided  by  law,  in  such  manner  as  shall  be  thus  pro- 
vided: 

8.  To  render  a  just  and  true  account  of  the  proceeds 
of  the  sales  and  the  interest  on  the  loans  thereof,  and  of 
the  rents  and  profits  of  such  gospel  and  school  lots,  and 
of  the  expenditure  and  appropriation  thereof,  on  the  last 
Tuesday  next  preceding  the  annual  town  meeting  in 
each  year,  to  the  board  of  auditors  of  the  accounts  of 
other  town  officers : 

9.  To  deliver  over  to  their  successors  in  office,  all 
books,  papers  and  securities  relating  to  the  same,  at  the 
expiration  of  their  respective  offices ;  and, 

10.  To  take  therefor  a  receipt,  wliich  shall  be  filed  in 
the  clerk's  office  of  the  town. 

^  4.  The  board  of  auditors  in  each  town  shall  annu-  Accounts, 
ally  report  the  state  of  the  accounts  of  the  trustees  of  the 
vospel  and  school  lots  in  that  town,  to  the  inhabitants 
thereof,  at  their  annual  town  meeting. 

^  5.  Whenever  a  town  having  lands  assigned  to  it  for  Landsof 
the  support  of  the  gospel  or  of  schools,  shall  be  divided  '"'•''*  *^"'"' 
into  two  or  more  towns,  or  shall  be  altered  in  its  limits 
hy  the  annexing  of  a  part  of  its  territory  to  another  town 
or  towns,  such  lands  shall  be  sold  by  the  trustees  of  the 
town  in  which  such  lands  were  included,  immediately 
Ijefore  such  division  or  alteration;  and  the  proceeds  there- 
of shall  be  apportioned  between  the  towns  interested 
therein,  in  the  same  manner  as  the  other  public  moneys 
of  towns,  so  divided  or  altered,  are  apportioned. 

§  6.  The  shares  of  such  moneys  to  which  the  towns  shares «. 
uhali  be  respectively  entitled,  shall  be  paid  to  the  trustees  "'**""  ^"^ 
of  the  gospel  and  school  lots  of  the  respective  towns,  and 
sliall  thereafter  be  subject  to  the  provisions  of  this  Title. 

§  7.  If  in  either  of  such  towns,  trustees  of  gospel  and  h,. 
Tschool  lots  shall  not  have  been  chosen,  or  there  be  none 
in  office,  the  share  of  such  town  shall  be  paid  to  the  su- 
pervisor ;  and  the  town,  at  its  next  annual  town  meet- 
ing, and  annually  thereafter,  shall  choose  such  trustees 
in  the  same  manner  as  if  gospel  and  school  lots  had  ori- 


42£  LAWH    RELATING    TO,^  &C. 

ginally  been  assigned  to  it ;  which  trustees  shalt  have- 
charge  of  the  moneys  so  paid  to  the  8upervL<<or,  and  shall 
be  subject  to  all  the  duties  and  liabilities,  and  possess  all 
the  powers  impoeed  oc  conferred  in  this  Titk. 


FORMS,   REGULATIONS,   dec. 


RESIGNATIONS. 

[Reference  from  Sec.  83.] 

The  provision  referred  to  in  this  section  is  as  follows : 
"  Any  three  justices  of  the  peace  of  a  town  may,  for  sufficient 
cause  shown  to  them,  accept  the  resignation  of  any  town  offi- 
cer of  their  town."  Sec.  33,  Title  III.  Chap,  XI.  1  R.  S.  348. 
They  may  do  the  same  as  to  officers  of  school  districts,  and 
rftust  notify  the  clerk,  or  a  trustee  of  the  district,  of  such  resig- 
nation. 


ASSESSMENT  OF  TAXES. 

[Reference  from  Sec.  90.] 

The  following  are  the  provisions  referred  to  in  this  section,  and 
are  extracted  from  Chapter  XIII,  Title  II.,  which  relates  to  the 
assessment  and  collection  of  taxes  :  (p.  392,  1  R.  S.) 

"^  15.  If  any  person,  whose  real  or  personal  estate  is  liaUe 
to  taxation,  shall  at  any  time  before  the  assessors  shall  have 
completed  their  assessments,  make  affidavit  that  the  value  of  his 
reel  estate  does  not  exceed  a  certain  sum,  to  be  specified  in  such 
affidavit ;  or  that  the  value  of  the  personal  estate  owned  by  him, 
after  deducting  his  just  debts,  and  his  property,  invested  in  the 
stock  of  incorporated  companies,  liaWe  under  this  Chapter  to 
taxation  on  their  capital,  does  not  exceed  a  certain  sum,  to  be 
specified  in  the  affidavit,  it  shall  be  the  duty  of  the  assessors  to 
value  such  real  or  personal  estate,  or  both,  as  the  case  may  be, 
at  tlie  sums  specified  in  such  affidavit,  and  no  more." 

"S  1(5.  If  any  trustee,  guardian,  executor  or  administrator, 
shall  specify,  by  affidavit,  the  value  of  the  property  possessed 
by  him,  or  under  his  control,  by  virtue  of  such  trust,  after  de- 
ducting the  just  debts  due  from  him,  and  the  stock  held  by  him 
in  incorporated  companies  liable  to  taxation,  in  that  capacity, 
the  assessors  shall  in  like  manner  value  the  same  at  the  sum 
specified  in  such  affidavit." 

"§  17.  All  real  and  personal  estate  liable  to  taxation,  the 
ralue  of  which  shall  not  have  been  specified  by  the  affidavit  of 


i.26  FORMS    AND 

the  person  taxed,  shall  be  estimated  by  the  assessors  at  its  full 
value,  as  they  would  appraise  the  same  iu  payment  of  a  just 
debt,  due  from  a  solvent  debtor." 

After  completing  the  assessment  roll,  section  19  provides  that 
the  assessors  "shall  make  out  one  fair  copy  thereof,  to  be  left 
with  one  of  their  number.  They  shall  also  forlhxvith  cause  no- 
tices thereof  to  be  put  up  at  three  or  more  public  places  in  their 
town  or  ward." 

"^  20.  Such  notices  shall  set  forth  that  the  assessors  have 
completed  their  assessment  roll,  and  that,  a  copy  thereof  is  left 
with  one  of  their  number,  to  be  designated  in  such  notice,  at 
some  place  to  be  specified  therein,  where  the  same  may  be  seen 
and  e.xamined  by  any  of  the  inhabitants  of  the  town  or  ward 
during  twenty  days  ;  and  that  the  assessors  will  meet  on  a  cer- 
tain day,  at  the  expiration  of  such  twenty  days  and  at  a  place^ 
to  be  specified  in  such  notice,  to  review  their  assessments,  on  the 
application  of  any  person  conceiving  himself  aggrieved." 

",^21.  The  assessor  with  whom  such  assessment  roll  is  left, 
shall  submit  the  same,  during  the  twenty  days  specified  in  suthr 
Hotice,  to  the  inspection  of  all  persons  who  shall  apply  for  that 
purpose." 

"  ^  22.  The  assessors  shall  meet  at  the  time  and  place  speci- 
fied in  the  notice,  and  on  the  application  of  any  person  conceiv- 
ing himself  aggrieved  by  their  assessment,  shall  review  such  as-, 
sesament.     And  when  the  person  objecting  thereto,  shall  iwt" 
previously  have  made  affidavit  concerning  the  value  of  his  pro*-- 
perty,  pursuant  to  the  fifteenth  and  sixteenth  sections  of  this 
Title,  the  assessors  shall,  on  the  affidavit  of  such  person,  made-' 
as  provided  in  those  sections,  reduce  their  assessments  to  the  sitm 
specified  in  such  affidavit."  i   .•> 

"§  23.  If  the  person  objecting  to  the  assessment  can  show  bly  • 
other  proof  than  his  own  affidavit,  to  the  satisfaction  of  the  as^ 
sessors,  or  of  a  majority  of  them,  that  such  assessment  is  erro- 
neous, the  assessors  shall  review  and  alter  the  same,  without  ten 
quiring  any  such  affidavit." 

",^  24.  Where  any  person  in  possession  of  personal  property 
liable  to  taxation,  shall  make  affidavit  that  such  property,  or 
any  part  thereof,  specifying  what  part,  is  possessed  by  him  ^s 
agent  for  the  owner  thereof,  and  shall  disclose  in  such  affidavit 
the  name  and  residence  of  the  owner,  the  assessors,  if  it  shalf 
appear  that  such  owner  is  liable  to  be  taxed  under  this  Chapter, 
nhall  not  include  such  personal  estate  in  the  assessment  of  the 
property  of  such  possessor." 

"§  25.  The  affidavit  specified  in  this  ArticJe,  shall  be  mad« 
before  the  assesfeors,  -or  one  of  them,  either  of  whom  is  hereby 
authorized  to  administei-  an  oath  for  that  purpose  ;  and  the  asr 


REGULATIOXS. 


427 


sessors  shall  cause  all  such  affidavits  to  be  filed  in  the  office  of 
the  town  clerk." 


Form  of  a  District  Tax  list,  and  Warrant. 

List  of  taxes  payable  by  the  following  persons,  taxable  in- 
habitants of  district  No,  in  the  town  of  made 
by  the  trustees  of  said  district  on  the  day  of  ', 
18         in  conformity  to  law. 


XAME. 

VahiatiDii  of 
real  estate. 

Personal  es- 
tate. 

Total  pro- 
perty. 

Atnount  o( 
taxes. 

Collector's 
lees  5  per 
cent 

Total  amou't 
to    be  col 
Icctcd 

A.  B... 
C.  D... 
E.  F... 

$1,000 
1,500 
2,000 

$200 
500 
800 

$1,200 
2,000 

2,800 

$6.00 
10.00 
14.00 

<«0.30 
0.50 
0.70 

$6.30 
10.50 
14.70 

County  of  .      ss. 

To  the  collector  of  school  district  No.  in  the  town  of 

in  the  county  aforesaid.  Greeting; 
In  the  name  of  the  people  of  the  state  of  New- York,  you  are 
hereby  commanded  and  required,  to  collect  from  each  of  the  in- 
habitants in  the  annexed  tax  list  named,  the  sum  of  money  set 
opposite  to  his  name,  in  said  list,  and  within  thirty  days  after 
receiving  this  warrant,  to  pay  the  amount  thereof  collected  by 
you,  (retaining  five  per  cent,  for  your  fees,)  into  the  hands  of  the 
trustees  of  said  district,  or  one  of  thein,  and  take  his  or  their  re- 
ceipt therefor :  And  if  any  of  the  said  inhabitants  shall  not  pay 
such  sum  on  demand,  you  are  hereby  further  commanded,  to 
levy  the  same  by  distress  and  sale  of  the  goods  arxd  chattels  of 
the  said  dehnquent,  in  the  same  manner  as  on  warrants  issued 
\w  the  board  of  supervisors  to  the  collectors  of  towns. 
Given  under  our  hands  and  seals,  this 

day  of  in  the  year  of  our  I^ord 

one  thousand  eight  hundred  and 
A.  B.  [l.  s.]  ) 
0.  D.  [l.  s.I  >  Trustees> 
E.  F.  [l.  s.]  \ 

[The  tax  list  must  be  made  out  within  one  month  after  the 
district  meeting  in  which  the  tax  was  voted.]  ' 


th'.dfekf. 


«f 


428 


FORMS    AND 


fc;  Form  of  a  District  Rate  Biil. 

Rate  bill  of  th«  persons  liable  for  teacher's  wages  in  district 
No.  in  the  town  of  for  the  school  term 

ending  18 


NAMES.  . 

No.  i>r  (Jaya 
sent. 

Amount  of 
school  till. 

follertor'g  fees, 
5  ptr  cent 

Totuf  amount  lo- 
be collected. 

A.  B 

C.D....i.. 

E.F. 

80 

90 

100 

$1.00 
1.121 
1.25 

$0.05 
0.05f 
0.06| 

$1.05 
1.18| 
1.311 

[The  warrant  to  be  annexed  to  a  rate  bill,  is  to  be,  similar  ia 
form  to  the  warrant  annexed  to  a  tax  list,  as  above,  excepting 
that  <he  words  "  rate  bill "  will  be  substituted  for  the  word» 
"tax  list,"  or  "list,"  whenever  the  two  latter  occur.] 

[In  executing  the  wairanf,  the  collector  will  be  governed  by 
the  following  sections  of  chapter  13,  pages  397  and  398,  1 
R.  S.] 

S  1.  Every  collector,  upon  receiving  the  tax  list  and  warrant, 
shall  proceed  to  collect  the  taxes  therein  mentioned,  and  for  that 
purpose  shall  call  at  least  once  on  the  person  taxed,  or  at  the 
place  of  his  usual  residence,  if  in  the  town  or  ward  for  which 
such  collector  has  been  chosen,  and  shall  demand  payment  of 
the  taxes  charged  to  him  on  Irs  property. 

S  2.  In  case  any  person  shall  refuse  or  neglect  to  pay  the  tax 
imposed  on  him,  the  collector  shall  levy  the  same  by  distress  and 
sale  of  the  goods  and  chattels  of  the  person  who  ought  to  pay 
the  same,  or  of  any  goods  and  chattels  in  his  possession,  where- 
soever the  same  may  be  found  within  the  district  of  the  collec- 
tor, and  no  claim  of  property  to  be  made  thereto  by  any  other 
person  shall  be  available  to  prevent  a  sale.* 

^  3.  The  collector  shall  give  public  notice  of  the  time  and 
place  of  sale,  and  of  the  property  to  be  sold,  at  least  six  days 
previous  to  the  sale,  by  advertisements  to  be  posted  up  in  at  least 
three  public  places  in  the  town  where  such  sale  shall  be  made. 
The  sale  shall  be  by  public  auction. 

^  4.  If  the  property  distrained  shall  be  sold  for  more  than  the 
amount  of  the  tax,  the  surplus  shall  be  returned  to  the  person 
in  whose  possession  such  property  was  when  the  distress  was 
made,  if  no  claim  be  made  to  such  surplus  by  any  other  person. 
If  any  other  person  shall  claim  such  surplus  on  the  ground  that 
the  property  sold  belonged  to  him,  and  such  claim  be  admitted 

*  Note. — "  No  replevin  shall  lie  for  any  property,  taken  by  virtue  of  any  warrant 
for  the  collection  of  any  tax,  asaeiisnient  or  fine,  ia  pursuance  of  oay  statute  of  this 
■Ule."    2d  R.  S.  page  5lti,  sec.  4. 


REGULATIONS.  429 

by  the  ppi^son  for  whose  tax  tlie  same  was  distrained,  the  surplus 
^all  be  paid  to  such  owner ;  but  if  such  claim  be  contested  by 
the  person  for  whose  tax  the  property  was  dislramed,  the  sur- 
plus moneys  shall  be  paid  over  by  the  collector  lo  the  supervisor 
of  the  town,  who  shall  retain  the  same  until  the  rights  of  the 
parties  shall  be  determined  by  due  course  of  law.  1  R.  S.  page 
397,  398. 


Porm  of  a  Bond  to  be  given  by  a  District  Collector. 

Know  all  men  by  these  presents,  that  we.  A.  B.  and  C.  D. 
(the  collector  and  his  surety,)  are  held  and  firmly  bound  to  E. 
F.  and  G.  H.  &c.,  trustees  of  school  district  number  in 

the  town  of  in  the  sum  of  (here  insert  a  sum  dou- 

ble the  amount  to  be  collected,)  to  be  paid  to  the  said  E.  F.,  G. 
H.,  &;c.,  trustees  as  aforesaid,  or  to  the  survivor  or  survivors  of 
them,  or  their  assigns,  trustees  of  said  district;  to  the  which 
payment,  well  and  truly  to  be  made,  we  bind  ourselves,  our 
heirs,  executors  and  administrators,  firmly  by  these  presents. 
Sealed  with  our  seals,  and  dated  this  day  of 

18  &c. 

The  condition  of  this  obligation  is  such,  that,  whereas  the 
above  bounden  A.  B.  has  been  chosen  (or  appointed,  as  the  case 
may  be,)  collector  of  the  above  mentioned  school  district  number 
in  the  town  of  in  conformity  to  the  act  for  the 

support  of  common  schools;  now,  therefore,  if  he  the  said  A.  B. 
shall  well  and  truly  collect  and  pay  over,  after  dexlucting  5  cents 
on  each  dollar  as  his  fees,  the  moneys  assessed  upon  the  taxable 
inhabitants  of  said  district,  in  a  rate  bill  or  tax  list  dated  the 
day  of  and  this  day  received  by  the  said  collector, 

which  assessment  amounts  to  a  total  sum  of  dollars 

and  cents,  and  shall  in  all  respects  duly  and  faithfully 

execute  the  said  warrant,  and  all  the  duties  of  his  office  as  col- 
lector of  such  district,  then  this  obligation  shall  be  void,  other- 
wise of  full  force  and  virtue.  y 

Signed,  sealed  and  delivered,  ^  A.  B.  [l.  s.] 

in  the  presence  of  C.  D.  [l.  s.J 

[This  bond,  by  section  120,  is  to  be  given  whenever  required 
by  trustees:  If  not  given,  by  section  121,  the  office  of  collector 
is  vacated.  By  section  117,  the  trustees  are  required  to  deliver 
this  bond  to  their  successors.] 


^180  FORMS    AND 

JFhrm  of  the  Apportionment  of  Fuel,  to  be  made  by  Trus- 
tees, when  the  same  has  not  been  provided  by  a  Tax  on 
the  Dhtrict.     [§  94  and  95.] 

We,  the  trustees  of  district  No,  in  the  town  of 

do  certify  that  each  person  whose  name  is  hereunto  annexed,  u» 
liable  to  provide  the  proportion  of  fuel  set  opposite  his  name,  for 
the  use  of  the  school  in  said  district,  viz. 

Names.  No.  of  children  sent.  Amoimt  of  wood. 

A.  B.  2  children.  1  cord. 

CD.  4       "  2     « 

E.  F.  6      "  3     « 

Given  under  our  hands  at      this  dav  of  18 

Trustees. 

[Thi?  apportionment  should  Ije  recorded  by  the  clerk  of  the 
district,  and  in  case  of  the  delinquency  of  any  inhabitant,  no 
tice  should  be  given  to  him  by  one  of  the  trustees,  as  required 
in  section  96.] 

[To  enable  the  trustees  to  make  this  apportionment  before  tlie 
close  of  the  school  term,  they  can  ascertain  the  number  of  chil- 
dren which  each  inhabitant  proposes  to  send,  or  from  the  best 
evidence  in  their  power,  and  make  an  equitable  adjustment  of 
the  apportionment,  when  the  term  closes.] 


JFhrm  of  a  Distritt  Report  to  be  made  by  the  Trustees  to  the 
Commissioners  of  Common  Schools. 

To  the  commissioneris  of  common  schools  of  the  town  of 
We,  the  trustees  of  school  district  number  in  said  town, 

in  conformity  with  the  statute  for  the  support  of  common  schools, 
do  certify  and  report,  that  the  whole  time  any  school  has. been 
kept  in  our  district,  dudng  the  year  ending  on  the  dale  hereof, 
and  since  the  date  of  tAilast  report  for  said  district,  is  [here  in- 
sert the  whole  time  any  school  has  been  kept  in  the  district 
school-house,  although  for  a  part  of  that  time  it  m,ay  have 
been  kept  by  teachers  not  approved  by  the  inspectors,]  and 
that  the  time  during  said  year  and  since  said  last  report,  such 
school  has  been  kept  by  a  teacher  [or  teachers,  as  the  case  may 
be]  duly  appointed  and  approved  in  all  respects  according  to  law 
is  [here  insert  the  same  with  precision.]  That  the  amount  of 
money  received  in  our  district  from  the  commissioners  of  con>- 
mDU  schools,  during  the  said  year,  and  since  the  date  of  the 


REGtLAf  IONS.  431 

said  last  report,  is  [here  -insert  the  whole  ammitit,  allhmigh 
it  may  harfe  been  received  in  whole  or  in  part  by  -predecessors 
in  office.]  and  that  the  said  sum  has  been  applied  to  the  pay- 
ment of  the  compensation  of  teachers  employed  in  said  dislrici, 
and  qualified  as  the  statute  prescribes.  That  the  number  of 
children  taught  in  said  district,  duiin£^  said  year  and  since  said 
last  report,  is  [here  insert  the  same,  not  by  conjecture,  but  by 
referciice  to  the  teacher's  list,  or  other  atithentic  sources.^ — 
And  that  the  number  of  children  residing-  in  our  district  on  the 
liast  day  of  December  last,  who  are  over  tive,  and  under  sixteen 
years  of  age,  is  [here  iiisert  the  mimber,  taking  in  such  only 
as  -permanently  resided  in  the  district  on  the  last  day  of  De- 
cember, and  who  were  then  over  jive  and  under  sixteen  years 
of  age,  [and  that  the  names  of  the  parents,  or  other  persons 
with  whom  such  children  respectively  reside,  and  the  nimiber  re- 
siding with  each,  are  as 'follows,  viz: 

Parents,  i^'c.  No.  of  children. 

A.  B.  "  "  "               5 

C.  D.  »  "  '-'              3 

E.  F.  "  , "  "2 

■And  we  further  report,  that  our  school  has  been  visited  by  the  in- 
spectors of  common  schools,  or  one  of  them,  during  the  year  pre- 
ceding this  report,  [once  i7i  each  quarter,  or  more,  or  less,  or 
not  at  all,  as  the  case  may  be]  and  that  the  sum  paid  for  teach- 
ers' wages,  over  and  above  the  public  moneys  apportioned  to 
said  district,  during  the  same  year,  amount  to  jjt;  cenfi>. 

[This  blank  is  to  be  filled  with  the  sum  total  of  all  the  school 
hills  for  the  year  which  are  7nade  out  after  applying  the 
school  money  to  the  payment  of  teachers'  wages.] 

Datetl  at  this  first  day  of  January,  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and 

\.  B.  ) 

Trustees. 

>'  [Tlie  trustees  should  hand  this  report  to  the  town  clerk,  on 
or  before  the  first  day  of  March.     Sec.  104,  105.] 


Form  of  a  District  Report,  where  the  District  is  formed  out 
of  two  or  more  adjoining  Towns. 

/To  the  commissioners  of  common  schools  of  the  town  of 

We,  the  trustees  of  school  district  numljer  formed  part- 


♦*. 


^ 


432  FORMS    AND 

ly  out  of  the  taid  town,  and  partly  out  of  the  adjoining  town 
of  do,  in  conformity  with  the  statute  for  tiie  support  of 

<X)mmon  schooL?,  certify  and  report, 

That  the  whole  time  any  school  has  been  kept  in  our  district, 
during  the  year  ending  on  the  date  hereof,  and  since  the  date  of 
the  last  report  for  said  dii^irict,  i*  [here  insert  the  whole  time  any 
school  has  been  kept  in  the  district  school-Junise,  although  for 
<z  part  of  that  time  it  m.ay  have  been  kept  by  teachers  not  ap- 
proved by  the  inspectors,]  and  that  the  time  during  said  year 
and  since  said  last  report,  such  school  has  been  kept  by  a  teacher 
[or  teachers,  as  the  case  may  be]  duly  appointed  and  approved 
in  all  respects  according  to  law.  is  [here  insert  the  same  unth 
precision.]  That  the  total  amount  of  money  received  by  said 
district,  from  the  commissioners  of  common  schools  of  the  re- 
spective towns  out  of  which  said  district  is  formed,  since  the  date 
of  the  last  annual  report  of  said  district,  is  [here  insert  (he 
whole  amount,  although  it  m.ay  have  been  received  in  whole 
or  in  part  by  predecessors  in  office.]  And  that  the  said  sum 
has  been  applied  to  the  payment  of  the  compensation  of  teach- 
ers employed  in  said  district  and  qualified  as  the  statute  pre- 
scribes. That  the  number  of  children  taught  in  said  district 
during  said  year,  and  since  said  last  report,  is  [here  insert  the 
same,  not  by  conjecture,  but  by  reference  to  the  teacher's  list, 
or  other  authentic  sources.]  And  that  the  number  of  children 
residing  in  our  district  on  the  last  day  of  December  last,  who 
are  over  five,  and  under  sixteen  years  of  age,  is  [here  insert  the 
number,  taking  in  such  only  as  permanently  resided  in  the 
district  on  said  day  and  who  were  then  over  five  and  un- 
der sixteen  years  of  age,\  and  that  the  names  of  the  parents, 
or  other  persons  wiJh  whom  such  children  respectively  reside, 
and  the  number  residing  with  each,  areas  follows  viz: 

Parents,  ^c.  No.  of  Children. 

A.  B.  "  "  "  5 

a  D.  "  «  «  3 

E.  F.  "  «  "  2 

And  we  do  further  specify  and  report,  that  of  the  said  sum  of 
money,  so  as  alwve  stated  to  have  been  received  in  our  said  dis- 
trict, the  sum  of  [here  state  the  same]  was  received  for  and  on 
account  of  that  part  of  said  district  lying  in  the  said  town^f 
and  the  sum  of  for  and  on  account  of  the  other  part  there- 

o{y  lying  and  Ijeing  in  said  town  of  That  of  the  said  ctiiki- 

ren,  so  as  above  stated  to  have  been  taught  in  our  said  district, 
th^number  belonging  to  that  part  of  said  district  lying  in  the 
saicltown  of  is  and  that  the  number  belonging  to 

the  other  part  thereof,  lying  in  the  said  town  of  is 


REJGULATidNS.  433 

That  of  the  said  children,  between  the  said  ages  of  five  and  six- 
teen years,  so  as  above  stated  to  reside  in  our  district,  t\ie  num- 
ber residing  in  that  part  of  said  district  Jying  in  the  said  town  of 
is  and  that  the  number  residing  in  the  other  part 

thereof,  lying  in  said  town  of  is  And  we  further  re- 

port, that  our  school  has  been  visited  by  the  inspectors  of  com- 
mon schools,  m-  one  of  thera,  during  the  year  preceding  this  re- 
port, [once  iti  each  quarter,  or  more,  or  less,  or  not  at  all,  as 
the  case  may  be,\  and  the  sum  paid  for  teachers'  wages,  over 
and  above  the  public  moneys  apportioned  to  said  district,  during 
the  same  year,  amounts  to  $  cents,  of  which  sum 

dollars  cents  were  paid  by  that  part  of  the  district  lying  in 

the  town  of  and  dollars  cents  by  the  part  lying 

in  the  town  of  f  This  blank  is  i^  he  filled  with  the  sum  to- 

tal of  all  the  school  hills  for  the  year  which  are  m,ade  out  af- 
ter applying  the  school  money  to  the  payment  of  teachers' 
wag-es.] 

Dated  at  this  first  day  of  January,  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and 

A.  B.) 

C.  D.  V  Trustees.  '^* 

E.  F.-^ 

N.  R  A  copy  of  the  report  must  be  sent  to  the  commissioners 
or  clerk  of  each  town  out  of  which  the  district  is  formed. 


DISTRICT  MEETINGS- 

1.  Annual  meetings  are  adjourned  from  year  to  year,  and  no- 
tices in  the  second  form  which  follows,  are  to  be  posted  up  by 
the  clerk,  in  four  public  places  in  the  distiict,  five  days  before 
the  annual  meeting. 

2.  Special  meetings  are  called  by  order  of  the  trustees,  and 
every  taxable  inhabitant  should  be  notified  of  the  time,  place 
and  object  of  such  meeting,  at  least  five  days  before  it  is  held,  by 
reading  the  notice  in  his  hearing,  or  leaving  a  copy  thereof  at  his 
place  of  abode.     Sec.  56  and  sub.  2  of  84. 

3.  If  any  district  meeting  is  adjourned  for  more  than  one 
month,  the  clerk  mu9t  post  up  notices  in  four  public  places,  at 
Jeast  five  days  before  the  day  on  which  such  adjourned  meeting 
is  to  be  held.     Sec.  84,  sub.  3. 

4.  A  special  meeting  should  not  be  called  without  notice  to  all 
the  trustees,  who  should  confer  together,  and  a  major  part  of 
thera  should  sanction  the  order  of  the  clerk  to  call  a  special  meet- 
ing.    The  notice  for  a  special  meeting  should  specify  the  object, 

28 


434  FORMS    AND 

as  well  as  the  time  and  place  of  the  meeting.  If  the  clerk  can- 
not give  notice  for  annual  or  special  meetings,  either  of  the  truei- 
tees  may  do  the  clerk's  duty  in  this  particular.     Sec.  85,  sub.  2. 


Form  of  Notice  for  a  Special  District  Meeting. 

To  the  clerk  of  district  number 

The  trustees  of  district  number  at  a  meeting  held  for 

the  purpose,  have  resolved  that  a  special  meeting  be  called  at 
the  school-house,  on  the  day  of  18     at 

o'clock  in  the  noon  of  that  day.  for  the  purpose  of  [choosing 
a  collector  in  place  of  A.  B.  removed,  or  whatever  the  object  of 
the  meeting  may  6e,]  and  for  the  transaction  of  such  other  bu- 
siness as  the  meeting  may  deem  necessary. 

You  will  therefore  notify  each  taxable  inhabitant  of  the  dis- 
trict, by  reading  this  notice  in  his  hearing,  or  if  he  is  absent 
from  home,  by  leaving  a  copy  of  it,  or  so  much  as  relates  to  the 
time  and  place  of  meeting,  at  the  place  of  his  abode,  at  least  five 
days  before  such  meeting. 

Dated  at  this  day  of  18 

A.  B.) 

C.  D.  V  Trustees. 
«fcc.     \ 


Form  of  Notice  for  an  adjoitnied  District  Meeting,  to  he 
posted  up  in  the  District. 

-     ..  SCHOOL  DISTRICT  NOTICE. 

'Notice  is  hereby  given,  that  a  meeting  of  the  freeholders  and 
inhabitants  of  this  school  district,  authorized  by  law  to  vote  there- 
in, will  be  held  at  on  the  day  of  next,  (or  in- 
stant, as  the  case  may  be,)  at  oi'clock  in  the  noon, 
pursuant  to  adjournment.  Dated  at  school  district  number 
in  the  town  of            thb            day  of            A.  D.  18 

A.  B.  District  Clerk. 

N.  B.  If  it  be  the  annual  meeting,  it  should  be  so  termed  in 
^he  notice. 

SCj^  These  notices  are  to  be  posted  up  in  four  of  the  most 
public  places  in  the  district,  at  least  five  days  before  the  annual, 
or  any  other  meeting  which  has  been  adjourned  for  more  than 
pne  month.    Sec.  84,  sub.  3. 


REGULATIONS.  435 

Form  of  Minutes  to  be  kept  by  the  District  Clerk,  of  Pro- 
ceedings of  District  Meetings. 

At  a  meeting  of  the  freeholders  and  inhabitants  of  school  dis- 
trict number  in  the  town  of  held  pur- 
suant to  adjournment,  at  on  the  day  of 
18  [or  if  it  be  the  annual  meeting,  say,  "  at  an  annual 
meeting  of  <^c.,  held  pursuant  to  appointment  and  public 
notice,  at,^^  <fc.  Or  if  it  be  a  special  meeting,  say,  "  at  a 
special  meeting  of,  <^c.,  called  by  the  trustees  of  said  district, 
and  held  pursuant  to  special  notice,  at,  ^c,  on  the 
day  of"  (fcc]  A.  B.  was  chosen  moderator,  and  C.  D. 
was  present  as  district  clerk,  (or  if  the  clerk  be  not  present,  say 
E.  F.  was  appointed  clerk  pro  tern.) 

Resolved  unanimously,  {or  by  a  majority  of  votes  present, 
as  the  case  may  be.)  here  enter  the  proceedings  of  the  district 
in  the  form  of  resolutions,  and  with  as  much  precision  and 
certainty  as  possible. 

Let  the  minutes  of  the  proceedings  always  be  signed  by  the 
moderator  and  clerk,  in  the  district  book. 


ALTERING  SITE  OF  SCHOOL-HOUSE. 

In  order  to  change  the  site  of  a  school-house,  where  the  dis- 
trict has  not  been  altered,  as  provided  by  section  70,  <fcc.,  it  is  ne- 
cessary, 

1.  To  obtain  the  written  consent  of  a  major  part  of  the  com- 
missioners of  the  town,  or  of  each  town  to  which  the  district 
belongs. 

2.  To  call  a  special  meeting,  in  the  notification  of  which  the 
purpose  of  the  meeting  shall  be  stated. 

3.  To  obtain  the  concurrence  of  two-thirds  of  the  qualified 
voters  of  the  district,  when  thus  specially  called  together. 

4.  To  have  the  vote  taken  by  ayes  and  noes,  and  the  name 
of  each  person,  and  the  vote  he  gave,  taken  and  recorded. 

In  taking  the  vote  by  ayes  and  noes,  it  will  be  necessary  for 
the  clerk  to  make  a  list  of  the  names  of  the  voters  present,  with 
two  columns  at  the  end  of  the  names,  one  headed  '-aye"  and 
the  other  "no." 

To  ascertain  the  ayes  and  noes,  the  names  are  called  over, 
and  if  the  voter  is  in  favor  of  the  motion,  a  mark  is  made  op- 
posite his  name,  under  aye— if  against  it,  a  like  mark  is  made 
under  no.     Thus: 


436 


FORMS    AND 


Aye. 

No. 

4 

2 

Mr.  Morehouse, 
Mr.  Gurlis,  , . . 

Mr.  Budd, 

Mr.  Carroll, . . . 
Mr.  Beltis, .... 
Mr.  Hough, .  f . 


The  clerk  will  record  these  proceedings  in  the  district  book,  in 
the  following  form: 

At  a  meeting  of  the  freeholders  and  inhabitants  of  district 
number  in  the  town  of  held  at  the  school- 

house  in  pursuance  of  notice  to  all  the  taxable  inhabitants  of 
said  district,  on  the  day  of  A.  B,  was  chosen 

moderator,  and  C.  D.  was  present  as  district  clerk,  (or  E.  F.  was 
appomted  clerk  pro  tern.)  The  written  consent  of  the  commis- 
sioners of  common  schools  having  been  read,  staling  that  in  their 
opinion  the  removal  of  the  site  of  the  school-house  in  said  dis- 
trict is  necessary  :  And  the  subject  having  been  submitted  to  the 
meeting,  and  the  question  taken  by  ayes  and  noes,  it  was  car- 
ried, (or  lost)  two-thirds  of  all  those  present  at  such  special  meet- 
ing having  [or  not,  as  the  case  may  be,]  voted  for  such  removal, 
and  in  favor  of  such  new  site :  Those  who  voted  in  the  affirma- 
tive, were  Mr.  Morehouse,  Mr.  Budd,  Mr.  Carroll  and  Mr. 
Hough ;  those  who  voted  in  the  negative,  were  Mr.  Curtis  and 
Mr.  Bettis. 

Ayes  4.  Noes  2. 

[In  stating  the  ayes  and  noes,  the  christian  names  of  the  vo- 
ters should  be  given.] 

After  changing  the  site  of  the  school-house,  in  the  manner  b«- 
fore  prescribed,  the  voters  of  the  district,  at  the  same  or  any  sub- 
sequent meeting,  may  pass  a  resolution,  by  a  majority  of  those 
present,  in  the  ordinary  mode,  directing  the  trustees  to  sell  tl»« 
house,  according  to  sec.  73. 


COMMISSIONERS  AND  INSPECTORS. 

The  following  provisions,  which  relate  to  the  commissioners 
and  inspectors  of  common  schools,  are  extracted  from  chapter 
XI.  "Of  the  powers,  duties  and  privileges  of  towns." 

Commissioners  of  common  schools  must  be  electors  of  the 
town  for  which  they  are  chosen.  Sec.  1,  Title  III.  chap.  XI  p. 
345,  1  R.  S. 


"^ 


REGULATIONSr  437 

"Every  person  chosen  commissionei  or  inspector  of  common 
^hools,  before  he  enters  on  the  duties  of  his  office,  and  within 
ten  days  after  he  shall  be  notified  of  his  election,  shall  cause  to 
be  filed  in  the  office  of  the  town  clerk,  a  notice  in  writing,  sig- 
nifying his  acceptance  of  such  office."     Sec.  17,  ib. 

"If  any  person  chosen  or  appointed  to  either  of  the  offices 
named  in  the  last  section,  shall  not  cause  such  notice  to  be  filed, 
such  neglect  shall  be  deemed  a  refusal  to  serve."     Sec.  18,  ib. 

"  If  any  person  chosen  commissioner  or  inspector  of  common 
schools,  shall  refuse  to  serve  tlierein,  he  shall  forfeit  for  the  use 
of  the  town,  the  sum  of  ten  dollars."     Sec.  26,  ib. 

"  Inr  each  town,  the  supervisor  and  town  clerk,  together  with 
the  justices  of  the  town,  or  any  two  of  such  justices,  shall  con- 
stitute a  board  of  auditois  to  examine  the  accounts  of  .the  over- 
seers of  the  poor,  the  commissioners  of  common  schools,  and 
the  commissioners  of  highways  of  such  town,  for  moneys  re- 
ceived and  di^buised  by  them."     Sec.  46,  Tiile  4,  ib.  p.  355. 

"The  board  of  auditors  of  town  accounts  shall  meet  for  the 
purpose  of  examining  the  same  annually  in  each  town  in  this 
state,  on  the  Tuesday  preceding  the  annual  town  meeting  to  be 
held  in  such  town."     Sec.  47,  ib. 

"  The  electors  of  each  town  shall  have  power,  at  their  annual 
town  meeting,  to  establish  the  compensation  of  the  fence  view- 
ers, inspectors  of  common  schools,  and  collector  of  such  town." 
[Sub.  9,  of  sec.  5,  chap.  11,  p.  340,  1  R.  S.  and  sub.  2  of  same 
chap.  p.  356  j  amended  by  chap.  320,  Session  Laws  of  1830, 
p.  384.] 

CJoinmissioners  of  common  schools  aie  allowed  one  ddlar  per 
day.     See  page  418,  ^  5. 


,j  !$chool  Money  to  be  raised  by  Toton. 

The  electors  of  each  town,  at  their  annual  town  meeting, 
have  power, 

"To  direct  such  sum  to  be  raised  in  such  town,  for  the  support 
of  common  schools  for  the  then  ensuing  year,  as  they  may  deem 
necessary :  but  not  exceeding  a  sum  equal  to  the  amount  re- 
quired by  law,  to  be  raised  therein  for  that  purpose."  P.  340,  1 
R.  S.  A  special  meeting  may  be  called  for  this  purpose,  when 
twelve  persons  eligible  as  supervisors,  make  application  in  writ- 
ing to  the  town  clerk.     1  R.  S.  p.  341,  sec.  7. 


43§ 


FORMS    AND 


Recoveries  against  Commissioners  and  Trustees. 


"^  108.  In  suits  by  and  against  loan-officers,  commissioners 
of  loans,  commissioners  of  common  schools  and  commissioners 
of  highways,  trustees  of  school  districts  and  trustees  of  gospel 
and  school  lots,  the  debt,  damages  or  costs  recovered  against 
them  shall  be  collected  in  the  same  manner  as  against  individu- 
als; and  the  amount  so  collected  shall  be  allowed  to  them  in 
their  official  accounts."    2  R.  S.  p.  476,  sec.  108. 

[Trustees  of  districts  will  bear  in  mind  that  this  section  does 
not  apply  to  the  school  money  received  from  the  commissioners, 
as  that  must  be  paid  for  tuition  according  to  the  24th  section,  to 
entitle  the  district  to  its  apportionment  for  the  next  year.  And 
all  officers  through  whose  hands  the  common  school  moneys 
may  pass,  will  see  that  it  is  the  intention  of  (he  statute  relating 
to  common  schools,  that  the  sum  apportioned  from  the  slate 
treasury,  together  with  the  corresponding  sum  raised  by  tax  upon 
the  towns,  shall  be  paid  to  the  trustees  of  districts,  and  by  those 
officers  to  approved  teachers,  without  any  diminution  or  diver- 
sion, under  any  pretence  whatever.  The  school  money  cannot 
be  applied  for  repairing  school-houses,  paying  the  fees  of  officers, 
or  indemnifying  them  for  costs  incurred  in  the  discharge  of  their 
official  duties.  All  questions  in  regard  to  the  public  money  may 
be  submitted  to  the  superintendent,  and  decided  without  cost  to 
either  party. 

The  foregoing  section  of  the  Revised  Statutes,  so  far  as  com- 
missioners and  trustees  of  common  schools  are  concerned,  must 
have  reference  to  recoveries  connected  with  the  local  securities  in 
the  hands  of  commissioners,  and  those  growing  out  of  the  con- 
tracts made  by  trustees  of  districts  ;  in  all  such  cases  the  108th 
section  is  to  be  regarded  as  directory  to  the  town  auditors  in  set- 
tling the  accounts  of  commissioners,  and  to  the  district  meetings 
in  settling  the  accounts  of  trustees.  But  in  no  case  can  such 
audit  justify  an  application  of  the  school  moneys  to  any  other 
purpose  than  the  payment  of  the  wages  of  certified  teachers.] 


,  COMMISSIONERS  OF  SCHOOLS. 

Form  of  Proceedings  of  Com^missioners  in  Relation  to  Form- 
ing and  Altering  School  Districts. 

[In  altering  districts,  the  commissioners  must  be  notified,  and  hold  a  meeting,  and 
all  proceedings  in  relation  to  a  joint  district,  must  have  the  approbation  of  at  least 
two  of  the  commissioners  from  each  town,  out  of  which  the  district  is  formed.] 

"  The  commissioners  of  common  schools  of  the  town  of 
having  met  at  the  house  of  in  said  town,  in  pursuance  of 


REGULATIONS.  499 

previous  notice  to  each  of  said  commissioners,  do  hereby  adopt 
the  following  resohition  in  relation  to  the  division  of  said  town 
into  school  districts,  viz: 

"Resolved  unanimously,  \or  by  a  major  part  of  the  com- 
missioners^ as  ike  case  tnay  he\  that  district  No.  1  shall  con- 
sist of  lots  No.  1,  2,  3,  and  4 ;  district  No.  2,  of  lots  No.  5,  6, 
&c.  \here  the  boundaries  of  the  district  shoidd  be  fully  set 
forth  ;  and  where  the  district  is  described  by  giving"  the  names 
of  inhabitants,  the  addition  should  be  m,ade  of  the  land  oc- 
cupied by  the  several  persons  named.  This  will  prevent  ca- 
vil in  case  the  occupancy  is  changed.  Where  an  individual 
is  transferred  from,  one  district  to  another,  the  resolution 
ought  to  express  whether  it  was  done  with  or  tcithout  his  con- 
sent;  as  this  fact  is  material  in  case  he  claims  an  exemption 
from,  tax  under  ^81.  In  altering  a  district,  the  consent  of 
the  trustees  shotdd  be  annexed  to  the  resoltttiofi  of  the  com.- 
missioners,  as  follows:] 

"  We  consent  to  the  above  alteration  of  district  No, 
Dated 

A.  B.  ) 

C,  D.  }  Trustees,'' 

E.  F.  y 

[If  the  trustees,  or  a  major  part  of  them,  will  not  consent, 
then  the  commissioners  should  give  notice,  in  writing,  to  one  or 
more  of  them,  setting  forth  the  alteration  made,  viz :] 

"  To  the  trustees  of  school  district  No. 
?  "  Please  to  take  notice,  that  we  have  this  day  altered  your 
school  district  in  the  following  manner,  [here  give  a  particular 
description  of  the  alteration]  and  that  said  alteration  will  take 
effect  after  three  months  from  the  service  of  this  notice. 

"  Dated  at  this  day  of  18 

A.  B.  /  Commissioners  of 

C.  D.  \  Commmi  Schools." 
<■ 

'  [This  notice,  or  the  consent  of  the  trustees,  should  form  a 
part  of  the  description  which  is  given  to  the  town  clerk  for  re- 
cording :  and  if  it  is  the  notice,  a  commissioner  should  annex 
his  certificate,  that  a  copy  of  the  notice  was  duly  served  on  one 
of  the  trustees,  giving  the  date  of  such  service.] 

[Whenever  a  new  district  shall  be  formed,  one  or  more  of  the 
commissioners  must  prepare  a  notice  in  the  following  form,  di- 
rected to  one  of  the  taxable  inhabitants  of  the  district,  viz :] 

"  To  a  taxable  inhabitant  of  district  No.      , 

Sir- 
By  virtue  of  the  56th  and  57th  sections  of  the  statute  relating 


<t40  FORMS    ANI> 

to  common  schools,  yon  are  hereby  required  to  notify  (by  read- 
ing this  notice  in  bis  hearing,  or  in  case  of  his  aljsence  from 
home,  by  leaving  a  copy  thereof,  or  so  much  as  relates  to  the 
time  and  place  of  meeting,  at  the  place  of  his  abode,)  each  of 
the  taxable  inhabitants  residing  in  district  No.  and  de- 

scribed as  follows,  viz:  [here  ^ive  the  houiids  and  description 
of  the  district]  to  meet  at  in  the  town  of        on  the 

day  of  at        o'clock  in  the  noon,  to  elect  district 

officers,  and  to  transact  such  other  business  as  may  be  necessa- 
ry in  the  organization  of  said  district. 
Dated  at        this  day  of  1& 

A-  B.  Commissioner.^ 

[In  forming  a  district  from  two  or  more  towns,  the  above  no- 
tice should  be  signed  by  one  commissioner  from  each  town.) 

a3=  Whet*  the  commissioneis  foim  a  new  district,  and  ap- 
praise the  school-house,  according  to  sections  77  and  78  they 
are  to  distribute  the  appraised  value  of  the  school-house  in  the 
same  manner  as  the  trustees  of  the  district  would  apportion  th  > 
like  sum  if  it  was  a  tax  upon  tlie  several  inhabitarrts  of  the  dis- 
trict. 

Having  in  this  way  ascertained  the  amount  due  to  those  set 
off  as  their  portion  of  the  school-house,  and  other  property,  th& 
commissioners  should  make  out  an  order  to  the  trustees  of  th& 
district  retaining  the  school-hou?e,.  as  follows : 

To  the  trustees  of  district  No.  in  the  town  of 

We,  the  commissioners  of  common  schools  of  said  town,  hav- 
ing farmed  a  new  district,  to  which  certain  persons  belonging  to 
your  district  liave  been  attached,  and  having  valued  the  school- 
house  and  other  property  belonging  to  said  district  No.  at 
150  dollars,  do  determine  that  the  amount  justly  due  to  such 
new  district  is  fifty  dollars,  apportioned  to  the  several  persons  set 
off,  as  follows :  To  A.  B.  20  dollars,  C.  !>.  I.'?  dollars,  E.  F.  10 
dollars,  G.  H.  5  dollars. 

You  are  therefore,  according  to  the  statute  relating  to  com- 
mon schools,  to  levy  and  collect  the  said  sum  of  fifty  dollars, 
from  the  taxable  inhabitants  remaining  in  district  No.  af- 

ter the  alteration  alluded  to,  and  pay  the  same  to  the  trustees  of 
said  new  district  No. 

Given  under  our  hands  at  this  day  of        IS. 

»•..  .1    »  i.vu  ti  ^'  X)*  (    Commissioners. 


REGULATIONS. 


441 


Fhrm  of  the  Annual  Report  of  the  Commissioners  of  Com- 
mon iS'chools. 

To  the  Superintendent  of  Common  Schools  o(  the  State  of 
New- York, 

We,  the  commissioners  of  common  schools  of  the  town  of 
in  the  county  of  in  conformity  to  the  statute  in  relation  to 

common  schools,  do  report :  That  the  ninnber  of  entire  school 
districts  in  our  town,  organized  according  to  law,  is  [eig-ht]  and 
that  the  number  of  parts  of  school  districts  in  said  town,  is  [five] 
that  the  number  of  entire  districts  from  which  the  necessary  re- 
ports have  been  made  for  the  present  year,  within  the  time  limi- 
ted by  law,  is  [eight]  and  that  the  number  of  parts  of  districts 
from  which  such  reports  have  been  made,  is  [,^ye.]  That  from 
the  said  reports,  the  following  is  a  just  and  true  abstract,  viz : 


I 

)'.           1 

M 

all 

Whole 
ol  thn 
schoo 
bt^en 
Ihere 

tcngih 

u  any 

ha.s 

kopt 

n. 

1 

,enj:th  of  time 
surh    srhooi 

has  bet-n  kept 
by  approved 
teachers. 

Amount 
olmoney 
received 

c 

—  1 

—  •3 
•=  C 
o  = 

ommt  paid  for 
tellers'  wages, 
(-•iidcs    public 
oneys. 

Si  a 

Si' 

i 

Mons. 

Days. 

Mons. 

Days   1 

Dols.  Cts. 

oft    E  £-=  S 

No. 

1 

6 

1 

1 

3 

1 

10  30 

48 

34|$20  60| 

2 

2 

4 

4 

17  88 

46 

59    25  50| 

3 

or* 

3 

8 

12 

8 

12 

5  76 

77 

52 

23  30 

4 

4 

8 

4 

21  51 

85 

71 

30  15 

1 

3j 

5 

6 

6 

21  21 

73 

70 

30  20 

0 

y.    8* 

6 

4 

4 

16  06 

50.  53i  20  10 

3 

c. 

4 

4 

a  51 

50 

38    16  00 

4 

8 

9 
10 

12 
6 

4 
10 

( 

14  54 
9  70 

52 
33 

48    19  17 
32    12  40 

2 

. 

9 

1 

H  Pi 

10 

6 

3 

4  55'  12|  15 

10  25 

3 

11 

6 

6 

8  48 

28 

30 

13  00, 

4 

a:  E^ 

12 

3 

o 

3 

8  18 

26 

2;i 

14  00 

1 

*«'  s 

13 

8 

8 

8  79 

34 

2 

10  70 

2 

TotaJ. 

13 

83 

5 

1  65 

23 

168  47 

614 

'557 

245  37 

30 

A.nd  we,  the  said  commissioners,  do  further  certify  and  re- 
port that  the  whole  amount  of  money  received  by  us,  or  our 
predecessors  in  office,  for  the  use  of  common  schoob,  during  the 
year  ending  on  the  date  of  this  report,  and  since  the  date  of  the 
last  report,  for  our  town,  is  $  of  which  sum  the  part  re^ 

ceived  from  the  county  treasurer  is  $  the  part  from  the 

town  collector  is  $  [and  if  there  be  any  other  source  from 


m 


FORMS    AND 


which  any  part  has  been  received,  here  state  it  particularly.'] 
That  the  said  sum  of  money  has  been  apportioned  and  paid  to 
the  several  districts  from  which  the  necessary  reports  were  re- 
ceived by  the  commissioners.  That  the  school  books  most  in 
use  in  the  common  schools  in  our  town,  are  the  following,  viz : 
[here  specify  the  principal  books  tised.^ 

Dated  at  the  first  day  of  July,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and 

A.  B.  ) 

C.  D.  >  Commissioners. 

E.  F.  ^ 
?r5=*  The  commissioners,  in  making  their  annual  report  should 
be  careful  when  they  make  the  abstract  of  districts  formed  from 
two  or  more  towns,  to  include  in  the  report  of  their  town,  only 
such  of  the  children  between  five  and  sixteen  and  those  taught, 
as  reside  in  that  part  of  the  district  belonging  to  the  same  town, 
for  which  the  commissioners  are  making  their  report.  And  in 
putting  down  in  the  commissioners'  report,  the  amount  paid  for 
teachers'  wages,  over  and  above  public  money,  the  same  rules 
should  be  observed. 

[The  above  report  must  be  made  and  transmitted  to  the  coun- 
ty clerk,  between  the  first  day  of  July  and  the  first  day  of  Au- 
gust in  each  year.  The  columns  of  figures  should  be  added  up 
by  the  commissioners.  The  county  clerk,  between  the  first  of 
August  and  the  first  of  October,  should  transmit  to  the  Superin- 
tendent of  Common  Schools,  a  report  containing  a  list  of  the 
towns  in  his  county,  distinguishing  the  towns  from  which  the 
necessary  reports  have  beenmade  to  him,  together  with  a  certi- 
fied copy  of  all  such  reports.] 


INSPECTORS  OF  COMMON  SCHOOLS. 

1.  Three  inspectors  are  required  to  sign  the  certificate  for  a 
teacher :  And  three  should  hold  a  meeting  for  the  examination 
of  a  teacher. 

2.  The  commissioners  are,  by  virtue  of  their  offices,  authoriz- 
ed to  act  as  inspectors. 

3.  Teachers  are  required  to  be  inspected  and  to  obtain  certifi- 
cates every  year. 

4.  It  is  the  duty  of  inspectors  to  visit  each  school  at  least  once 
in  each  year. 

5.  The  inspectors  are  allowed  such  compensation  as  may  be 
decided  upon  by  a  vote  of  the  town  meeting.     [See  page  437'.] 


REGULATIONS. 


44^ 


Form  of  a  Certificate  to  he  given  to  a  Teacher. 

Wfe,  the  subscribers,  inspectors  of  common  schools  for  the 
town  of  in  the  county  of  Do  Certify,  tlmt  at  a 

meeting  of  the  inspectors,  called  for  that  purpose,  we  have  ex- 
amined {here  insert  the  name  of  the  teacher)  and  do  beUeve 
that  he  {or  she,  as  the  case  may  be)  is  well  qualified  in  respect 
to  moral  character,  learning  and  ability,  to  instruct  a  common 
school,  in  this  town  for  one  year  from  the  date  hereof, 
i.  Given  under  our  hands,  at  this         day  of        18 

A   B  ) 
"  c   T)  \  I'^^P^^^^^^  ^f  Ccm- 

^  T7*  T7I  (      mon  Schools.     ^ 

!*■■  ii..   i:".  3  ,q 


APPEALS. 

T%e  Superi?itendent  of  Com?non  Sch,ools  has  prescribed  the 
I','  following  Regidatiotis^  to  be  observed  in  cases  of  appeal 

f  to  him. 

*>i  '.e 

1.  All  appeals  must  be  presented  within  30  days  after  the 
making  of  the  decision  complained  of;  unless  sufficient  excuse, 
on  oath,  be  shown  for  not  making  the  appeal  within  the  time 
prescribed. 

2.  It  is  recommended  to  the  parties  in  all  cases  of  appeal,  to 
agree  upon  a  statement  of  facts  to  be  signed  by  the  parties  in- 
terested, and  presented  to  the  superintendent  for  his  decision 
thereon. 

3.  If  the  parties  cannot  agree  upon  a  state  of  facts,  the  party 
appealing  must  present  his  case  upon  affidavits,  a  copy  of  which 
affidavits,  with  notice  of  the  time  when  the  appeal  will  be  pre- 
sented, must  be  served  on  the  commissioners  or  trustees,  whose 
decision  is  appealed  from  ;  or  if  the  appeal  is  from  the  decision 
of  a  district  meeting,  then  on  the  trustees  or  clerk  of  the  district, 
at  least  ten  days  before  the  time  of  presenting  the  appeal :  and 
proof  of  such  service  must  be  made  by  affidavit  or  otherwise,  at 
the  time  of  presenting  the  appeal.  And  all  facts  in  opposition  to 
the  appeal,  must  be  presented  by  the  party  opposing,  by  affidavit 
or  on  oath,  and  copies  of  such  affidavits  must  be  served  on  the 
appellant. 

4.  It  shall  not  be  necessary  for  either  party  to  appear  personal- 
ly before  the  Superintendent  on  the  appeal :  but  such  appeal  may 
be  by  letter,  enclosing  the  state  of  facts,  agreed  upon  by  the 
parties ;  or  the  notice  and  affidavits  on  which  the  appeal  is  found- 


444  FORMS    AND 

ed,  with  the  evidence  of  the  regular  service  thereof;  and  either 
party  may  suggest  in  writing,  any  reasons  for  or  against  such 
appeal,  arising  out  of  the  facts  agreed  upon,  or  appearing  from 
the  affidavits. 

5.  Where  the  appeal  has  relation  to  the  formatier>  or  altera- 
tion of  a  school  district,  it  must  be  accompanied  by  a  map,  ex- 
hibiting the  site  of  the  school-house,  the  roads,  the  oW  and  new 
lines  of  districts,  the  different  lots,  the  particular  location  and 
distance  from  the  school,  of  the  persons  aggrieved,  and  their  re- 
lative distance,  if  there  are  two  or  more  school-houses  in  ques- 
tion. Also,  a  list  of  all  the  taxable  inhabitants  in  the  district  or 
territory  to  be  affected  by  the  question  ;  the  valuations  of  their 
property,  taken  from  the  last  assessment  roll,  and  the  number 
of  children  between  five  and  sixteen  belonging  to  each  person ; 
distinguishing  the  districts  to  which  they  respectively  belong. 

6.  After  copies  of  the  appeal  in  any  case  have  been  served, 
all  proceedings,  from  the  operation  of  which  relief  is  sought  by 
the  appeal,  will  be  suspended  until  the  case  is  decided. 

7.  Where  the  commissioners  discover  errors  in  the  reports  of 
trustees,  which  are  obviously  defects  in  form  merely,  they  should 
afford  the  trustees  an  opportunity  of  amending  their  report,  and 
then  pay  the  district  its  distributive  share  of  the  school  money,, 
if  the  facts  as  set  forth  in  the  amended  report  warrant  it. 

8.  Where  the  decision  of  commissioners  is  appealed  from  in 
relation  to  the  distribution  of  the  public  money  to  the  several  dis- 
tricts, they  ought  to  retain  the  money  which  is  in  dispute,  until 
the  appeal  b  decided. 

JOHN  A.  DIX, 
Superintendent  of  Convnan  Schosls^ 


V* 


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o4#- 


INDEX  TO  DECISIONS. 


ACADEMY. 
Se«  Children,  6. 

ACCOUNTS. 
See  Commissioners  of  Common 
Schools,  9,  10,  11, 
Trustees,  1 ,  25. 

ADJOURNMENT. 
See  Anntial  Meetings,  10,  1 1. 

ADMINISTRATORS. 
See  Taxation  and  Taxes,  4,7. 

AGENT  FOR  TOWN. 
See  Toicn  Funds  and  Lands,  5. 
AGENT  OR  SERVANT. 
See  J^'bn- Residents,  1,  2,  4,  5,  7, 

8,11. 

ALBANY. 
See  Evening  Schools. 

•  ALIENS. 

1.  Aliens  may  vote  at  district  meet- 

ings,      76 

2.  An  alien  cannot  be  an  officer 

of  a  school  dihtricf, 147 

ALTERATIONS  IN  SCHOOL 
DISTRICTS. 

1.  If  trustees  consent  verbally  to 

an  alteration  in  their  school 
district,  the  proceedings  will 
not  be  set  aside  for  want  of  a 
written  absent, 59 

2.  Persons  attached  to  a  school  dis- 

trict without  the  consent  of 
the  trustees,  may  within  three 
months  be  set  off  again  with- 
out the  constant  of  such  trus- 
tees,      65 

8.  Alterations  ought  not  to  be  made 
in  school  districts  when  the 
effect  is  to  give  particular  in- 
dividuals unjust  advantages  in 
respect  to  others, 75 

4.  Improper  alterations   in  school 

districts  will  not  be  sanctioned 
for  the  purpose  of  quieting 
controversies 104 

5.  An  inha!)itant  being  set  off  from 

a  school  district,  it  is  an  alter- 
ed district,  and  the  site  of  the 


school  house  may  be  changed 
by  a  majority  of  votes, 147 

If  two  farms  are  set  o IT  from 
one  school  district  to  another, 
and  contain  within  them  a 
third  not  included  in  the  order 
of  the  commissioners,  the  lat- 
ter must  nevertheless  go  with 
them...... 166 

Persons  set  off  from  a  school 
district  without  the  consent  of 
the  trustees,  do  not  cease  to 
belong  to  it  until  three  months 
after  notice  in  writing  to  the 
trustees, 212 

8.  If  an  alteration  is  made  in   a 

school  district,  without  the 
consent  of  the  trustees,  and 
without  the  knowledge  of  the 
parties  interested,  an  appeal 
to  the  Superintendent  will  be 
allowed  after  three  months,. .  227 

9.  If  a  school  district  is   altered, 

the  site  of  the  school-house 
may  be  changed  by  a  majority 
of  votes,  and  without  the  con- 
sent of  the  commissioners  of 
common  schools, 272 

10.  An  alteration  in  a  school  dis- 
trict, made  without  evidence 
of  the  consent  of  the  trus- 
tees, or  notice  to  them,  will 
be  held  not  valid,  if  all  con- 
cerned have  for  five  years  act- 
ed as  thotigh  it  had  not  been 
made, 27Ci 

11.  Trustees  of  school  districts 
should  not  give  a  general  con- 
sent before  hand  lo  alterations 
to  be  made  in  their  school  dis- 
tricts, but  such  consent  should  • 
be  limited  to  specific  altera- 
tions,    320 

See  Commissioners  of  Common 
Schooh,  S. 
Joint    Sihool    Districts,    I, 

2,3 
JVutiee,  3,  6,  16,  19.  /•« 

Records,  2,  5. 


"^^ 


446 


INDEX    TO    DECISIONS. 


See  School  DistHct,  6,  9,  13,  14. 
Superintendent,  6. 

ANNUAL  TOWN  MEETING. 
See  Commiasionera  of  Common 
Schoola,  20. 

ANNUAL  REPORTS  OF  TRUS- 
TEES. 

1.  If  the  annual  report  of  the  trus- 

tees of  a  school  district  is 
furnished  before  the  public 
moneys  are  apportioned  by  the 
commissioners,  it  is  in  time,      9 

2.  The  annual  report  of  school  dis- 

tricts should  be  made  out  by 
the  1st  of  March, 155 

3.  If   trustees    neglect,     without 

good  cause,  to  make  their  an- 
nual report  before  the  appor- 
tionment of  the  school  mo- 
neys, they  are  without  reme- 
dy,    155 

4.  If  the  annual  report  of  a  school 

district  includes  part  of  two 
years,  it  is  a  false  repoit 213 

5.  If  the  annual  report  of  a  school 

district  is  lost,  and  the  district 
does  not  receive  the  public 
money,  application  must  be 
made  to  the  Superintendent 
of  Common  Schools,  to  have 
the  deficiency  supplied  out  of 
the  moneys  to  be  distributed 
the  next  year 236 

6.  If  the  annual  report  of  a  school 

district  is  received  by  the  com- 
missioners before  the  public 
moneys  are  distributed,  it  is 
in  time,  and  the  district  should 
be  included  in  the  apportion- 
ment  ^ 296 

7.  If  the  annual  report  of  a  school 

district  is  signed  by  t  \o  trus- 
tees, the  commissioners  can 
look  no  further,  and  the  dis- 
trict must  receive  its  share  of 
the  public  money  if  the  report 

is  otherwise  sufficient 327 

See  Children,  6,  10. 

Errors  and  Omiasiona,  3,  5. 
Indian  Children. 
Poor-Houses,  1. 
Public  or  School  Moneya,  1 , 

11. 
TYuateea  of  School  Diatricts, 

22. 

ANNUAL  MEETINGS. 
1.  If  an  annual  meeting  in  a  school 
district  is  neglected,  the  trus- 
tees hold  over  until  the  next 
annual  meeting,  and  until  oth- 


ers shall  be  elected  in  their 
places, 4^ 

2.  H*  an  annual  meeting  is  held  at 

the  time  and  place  appointed 
at  the  annual  meeting  of  the 
preceding  year,  it  is  valid,  al- 
though the  clerk  of  the  district 
may  have  neglected  to  give 
the  notice  required  by  law,. .     70 

3.  If  the  time  for  the  annual  meet- 

ing is  unknown,  application 
should  be  made  to  the  Super- 
intendent to  fix  a  day  for  hold- 
ing it, 109 

4.  If  the  annual  meeting  is  void, 

the  persons  in  office  hold  over; 
but  the  commissioners  of  com- 
mon schools  cannot,  in  such  a 
case,  call  a  meeting  er  appoint 
officers, 114 

5.  The  clerk  of  a  schooi  district 

cannot  designate  a  place  for 
an  annnal  meeting  when  it  has 
been  omitted  at  the  previous 
annual  meeting, 129 

6.  Two  meetings  being  heU  at  dif- 

ferent places  on  the  same  day 
as  an  annual  meeting,  a  new 
one  will  be  ordered, 129 

7.  If  at  an  annual  meeting  a  rea- 

sonable time  is  not  allowed  to 
the  inhabitants  to  assemble,  a 
new  meeting  will  b?  ordered,  131 

8.  The  time  and  place  for  the  an- 

nnal meeting  not  having  been 
fixed,  it  may  be  held  at  the 
usual  time  and  place, 141 

9.  Ifthe  annual  meeting  in  a  school 

district  is  neglected,  the  dis- 
trict officers  hold  over  until  the 
next  annual  meeting, 241 

10.  If  an  annua)  meeting  is  regu- 
larly called  and  attended  by 
only  four  persons,  who,  with- 
out organizing,  agree  to  meet 
again  in  a  week,  the  second 
meeting  is  not  valid, 271 

11.  If  an  annual  meeting  is  regu- 
larly called  and  attended  by 
four  persons,  who  organize, 
and  without  transacting  any 
other  business  adjourn  for  a 
week,  the  proceedings  are  va- 
lid, and  the  annual  election 
may  be  held  at  the  adjourned 
meeting, 271 

12.  Annual  meetings  need  not  be 
precisely  one  year  apart  to  a 
day,.... 289 

See  JVotice,  17.  '- 

Taxation  and  Taxes,  20. 


H^ 


INPEX    TO    DECISIONS. 


447 


APPARATUS. 
See  Taxation  and  Taxes,  64. 

APPEALS. 

1.  An  appeal  to  the  Superinten- 

dent will  not  be  entertained 
when  the  point  at  issue  has 
been  settled  by  an  adjudica- 
tion upon  the  same  case  in  a 
court  of  competent  jurisdic- 
tion,           3 

2.  Appeals  must  be  made  by  per- 

sons aggrieved, •     57 

S.  The  regulation  of  the  Superin- 
tendent requiring  an  appeal  to 
be  made  within  thirty  days  af- 
ter the  proceeding  complain- 
ed c-f,  is  not  to  be  enforced 
against  an  aggrieved  party  hav- 
no  knowledge  of  such  proceed- 
ing,      162 

4.  If  within  thirty  days  after  pro- 
ceedings complained  of,  notice 

^  ^  of  appeal  is  served  and  the  pa- 
pers transmitted  to  the  Super- 
intendent, it  is  a  sufficient 
compliance  with  the  regula- 
tion, and  ten  days  will  be  al- 
lowed to  the  respondents  to 
answer,  after  the  service  of 
such  notice, 343 

See  Alterations   in    School  Dis- 
tricts, 9. 
JJssessment  of  Taxes,  2. 
Commissioners  of  Common 

Schools,  8,  17. 
Irregularity,  1. 
Property  of  School  Districts  y 

12. 
School  Districts,  3. 
Superintendent,  7. 
Taxation  and  Taxes,  74. 
Void  proceedings,  1. 
Votes  and  Voters,  6. 

APPENDAGES  TO  A  SCHOOL- 
HOUSE. 

1.  A  bell  is  not  a  necessary  appen- 

dage to  a  school-house  and 
cannot  be  provided  by  a  tax,     28 

2.  A  fence  is  a  necessary  appen- 

dage to  a  school-house, 235 

See  Taxation  and  Taxes,  4,  57. 

APPRAISEMENT  OF  SCHOOL- 
HOUSE. 
See  JVbtice,  5. 

Property  of  School  Districts. 

ASSESSORS  OF  TOWNS. 
See  Taxation  and  Taxes,  64,  67 

ASSESSMENT  OF  TAXES. 
1.  Trustees  in  assessing  taxes  may 


administer  an  oath  when  a  re- 
duction is  claimed 96 

2.  If  the  assessment  of  a  tax  is  de- 
layed by  an  appeal,  the  time 
is  not  to  be  computed  as  part 
of  the  month  within  which  the 
tax  list  must  be  made  out,. . .  304 

See  Assessment  Roll  of  Toum. 
J\otice,  4,  5. 
Taxation  and  Taxes. 

ASSESSMENT  ROLL  OF  TOWN. 

1.  The  assessment  roll  kept  by  the 

town  clerk  is  the  one  to  be 
followed  in  assessing  taxes,. .   154 

2.  If  an  individual  acquires  or  parts 

with  property  after  the  last  as- 
sessment roll  of  the  town  is 
made  out,  the  roll  must  not  be 
followed  in  making  out  a  tax 
list, 158 

3.  Where   improvements  in    real 

estate  have  been  made  and 
completed  since  the  last  as- 
sessment roll  of  the  town  was 
made  out,  the  roll  is  not  to  be 
followed,  so  far  as  such  real 
estate  is  concerned, ,  194 

4.  The  assessment  roll  of  the  town 

is  not  complete  until  it  is  sign- 
ed and  certified, 200 

5.  The  last  assessment  roll  of  the 

town  is  the  pro[)er  guide  to 
trustees  in  making  out  a  tax 
list  as  to  the  valuation  of  pro-> 
perty,  but  not  as  to  owner- 
ship,   225 

6.  From  the  1st  of  September  to 

the  meeting  of  the  board  of  su- 
pervisors, the  assessment  roll 
of  the  town  in  the  hands  of  "^ 
the  supervisor,  must  be  con- 
sulted in  assessing  taxes  in 
school  districts, 281 

7.  The  last  assessment  roll  of  the 

town  is  not  a  guide,  in  mak- 
ing out  a  tax  list,  as  to  a  per- 
son who  became  an  inhabitant 
of  the  district  after   the   roll 

was  made  out, 293 

See  Errors  and  Omissions,  1. 
JVotice,  5. 
Property  of  School  Districts, 

3. 
Taxation  and  Taxes,  51,  58, 

67,  70,  74,  76. 
tVarrant,  6. 

BANK. 
1.  Banks  are  taxable  for  common 

school  purposes, 87 

See  Public  or  School  Moneys,  6. 


448 


fshsi.'  t6  obcisions. 


BELL. 
See  jlppendages   to    a    School- 
Hottae,  1. 
BOND  OF  COLLECTOR. 
Sec  Collector,  1,  8.  9,  10,  II,  12. 

BRIDGE  COMPANIES. 
See  Tatatitin  and  Taxes,  14,  26. 

CANAL  BOATS. 
See  Vessels,  1. 

CERTIFICATES  OF   QUALIFI- 
CATION. 

1.  Conditional  certificates  of  quali- 

fication cannot  be  given  to 
teachers 24 

2.  Certificates  of  qualification  are 

good  for  a  year,  even  though 
given  by  the  inspectors  for  a 
shorter  period, 76 

3.  Certificates  of  qualification  gi- 

ven after  the  commencement 
of  a  term  are  good  in  some  ca- 
ses,    120 

4.  A    certificate    of   qualification 

signed  hy  tvvo  Inspectors  is 
good,  if  there  are  only  two 
persons  in  the  town  authoriz- 
ed to  act  as  such, 141 

5.  Certificates  of  qualification   to 

teach  a  particular  school  can- 
not be  ifiven, 199 

6.  A  certificate  from  the  insjiec- 

tors  of  common  schools  that  the 
candidate  gave  them  good  sa- 
tisfaction in  particular  branch- 
es, is  not  a  legal  certificate  of 
qualification  fur  a  teacher,. . .  2.35 

7.  A  teacher's  certificate  cannot 

be  dated  back, S28 

Seelnspectors  of  Common  Schools, 
3.  4,5,6,  7.8,  10,  11. 
Teachers,  8,  10,  16,  21,  23. 
CHILDREN. 

1.  None  but  children  residing  in  a 

school  district  can  of  right  be 
benefited  by  the  public  mo- 
ney      11 

2.  But  if  children  not  residing  in 

the  district  are  admitted  into 
the  school  .their  parents  should 
be  apprised  of  the  cotiditions 
on  which  thev  are  received,.     11 

3.  Children  are  to  be  numbered  in 

the  districts  in  which  their  pa- 
rents reside;  if  children  are 
"*  boarded  in  a  district  to  attend 
school,  they  must  be  number- 
ed where  their  parents  resiile,     33 

4.  AH  children  residing  in  a  school 

district  may  of  right  attend  the 
district  Kbool, A\ 


5.  All  children  attending  the  dit- 

trict  school  must  he  charged 
at  the  same  rate  for  tuition, 
without  regard  to  the  studies 
pursued  by  them 47 

6.  Children  attending  an  academy 

are  to  be  iHimbered  in  the  re- 
ports of  the  trustees  of  school 
districts,  if  their  parents  re- 
side in  the  district  in  which 
the  academy  is  situated,  but 
not  otherwise, 68 

7.  A  taxable  inhabitant  of  a  school 

district  may  send  to  school 
any  child  actually  living  with 

him,   68 

S.  No  child  residing  in  a  school 
district  can  be  excluded  from 
the  school  on  account  of  the 
inability  of  the  parent  to  pay 
his  tuition, 119 

9.  Parents  cannot  be  compelled  to 

send  their  children  to  school,  169 

10.  The  children  of  laborers  tem- 
porarily employed  on  canals, 
are  not  to  be  included  in  school 
district  reports, 208 

11.  If  a  man  removes  from  a  dis- 
trict on  the  last  day  of  Decem- 
ber, his  children  are  to  be  enu- 
merated in  the  district  into 
which  he  moves...-. 216 

12.  Children  residing  in  o  her 
states  when  attending  schools 
in  separate  nt'ighborhoods 
within  this  state,  cannot  share 
the  public  moneys, 229 

13.  Thenumberofchildrenattend- 
ing  school  during  tbe  year, 
mu.st  be  ascertained  from  the 
teacher's  lists, 292 

14.  Ifa  man  is  employed  in  a  school 
district  in  taking  care  of  a  mill 
from  fall  till  spring,  his  child- 
ren must  be  enumerated  in 
the  di.strict 293 

16.  Children  in  county  poor-hou- 
ses cannot  be  sent  to  a  district 
school,  excepting  by  volunta' 
ry  agreement  with  the  trus- 
tees   90S 

See  Colored  Person*. 
•  Fuel,  6. 
IwHan  Children. 
A'on-residents,  15. 
Poor-Housea,  1,2. 
Public  or  School  Moneys,  3. 
Residence,  4. 
Schtmis,  1 ,  8. 
School  Dixtricts,  11. 
TovonSt  Division  of,  2. 


INDEX  TO  decisions: 


u% 


CLERKS   OF    SCHOOL   DIS- 
TRICTS. 

1.  The  offices  of  clerk  and  collector 

may  be  held  by  the  same  per- 
son, although  the  intention  of 
the  law  would  be  better  an- 
swered by  conferring  them  on 
different  individuals, 142 

2.  If  a  clerk  neglects  to   keep  a 

book  of  minutes,  he  is  not  re- 
sponsible unless  a  book  is  pro- 
vided for  him, 164 

See  Annual  Meetings,  25. 
JMinor. 

JVotice,  2,  9,  13. 
School  Districts,  10. 
IVustees  of  School  Districts, 

9. 
Votes  and  Voters,  7. 

COLLECTOR. 

1.  If  the  collector  refuses  to  give  a 

bond,  his  office  becomes  va- 
cated, and  the  trustees  may 
make  a  new  appointment,. ..     19 

2.  Collectsrs  are  entitled  to  five 

per  cent  on  all  sums  actxially 
colhicted  and  paid  over  by 
them;  but  not  on  soms  paid 
to  teachers  for  tuition,  ..--..     54 

3.  Collectors  are  alio  wed  the  usual 

fees  of  distress  and  sale,  in 
addition  to  five  cents  on  each 
dollar,  when  they  take  and  sell 
the  property  of  delinquents,..  Ill 

4.  Any  goods  and  chattels  lawful- 

ly in  possession  of  a  person  as- 
sessed to  pay  a  tax,  may  be 
taken  by  the  collector  of  a 
school  district 143 

5.  A  collector  has  thirty  days  from 

the  delivery  of  a  tax  list  and 
warrant  to  collect  a  tax, 212 

6.  Ifa  collector  takes  and  sells  pro- 

perty to  pay  a  tax,  and  the 
owner  refuses  to  receive  the 
excess,  the  collector  must  re- 
tain the  amount  in  his  hands,  217 

7.  A  collector  is  not  bound  to  take 

any  particular  article  of  pro- 
perty at  the  request  of  the 
owner;  but  if  he  does  so  it 
will  be  an  answer  to  the  charge 
of  taldngan«xcessive  distress,  218 

^.  Tnjstees  may  require  a  bond  of 
the  collector  whenever  a  war- 
rant is  delivered  to  him  for 
collection, 340 

9.  If  the  trustees  do  not  require  a 
bond  of  the  collector  he  may 
execute  a  warrant  without 
giving  one, 340 


12 


13 


29 


10.  Quere. — Whether  the  bond  gi- 
ven by  a  collector  when  about 
to  execute  a  warrant,  is  a  se- 
curity for  the  faithful  execu- 
tion of  the  duties  of  his  office 
generally, 340 

11.  If  a  collector  gives  a  bond,  and 
after  collecting  part  of  a  tax 
resigns,  quere,  whether  he  is 
not  liable,  if  the  whole  amount 

is  not  collected, 840 

The  collector  of  a  school  dis- 
trict is  answerable  for  moneys 
lost  to  the  district  by  his  ne- 
glect, though  he  may  not  have 
given  a  bond  to  the  trustees,.  307 
Collectors  of  school  districts 
may,  in  certain  cases,  go  be- 
yond the  boundaries  of  the  dis- 
tricts for  which  they  were  ap- 
pointed, to  execute  warrants 

for  the  collection  of  taxes  and 

rat«  bills, 336 

See  Clerks  of  School  Districts,  1. 
Trustees  of  School  Districts^ 

2,  9,  30. 
Rate  bills,  2,  3. 
Taxation  and  Taxes,  71,  80. 
Warrant,  3,  5,  6,  S. 

COLLECTORS  OF  TOWNS.    ; 
See  Warrant,  b. 

COLOURED  PERSONS. 
1.  Coloured  persons  ought  not  to 
be  employed  to  teach  white 

children, 139 

See  Votes  and  Voters,  13. 
COMMISSIONERS  OF   COMMON 
SCHOOLS. 

1.  Commissioners      of     common 

schools  are  not  authorized  to 
change  the  site  of  a  district 
school-house,  although  their 
c»nsent  to  such  change  is  ne- 
cessary in  some  cases, 13 

2.  Commissioners  cannot  be  com- 

pelled to  pay  interest  on  mo- 
neys withheld  from  school  dis- 
tricts in  the  discharge  of  their 
duties, 89 

3.  Commissioners  of  com.  schools 

are,  to  all  intents,  inspectors,  146 

4.  Commissioners  of  com.  schools 

have  no  authority  to  designate 
a  site  for  a  school-house,  or  to 
give  a  conditional  consent  to 
a  change  of  the  site, 171 

5.  The   orders  of  commissioners 

altering  joint  districts  must  be 
put  on  record  in  all  the  towns 
of  which  the  districts  are  a 
part, 172 


450 


INDEX   TO   THE    DECISIONS. 


6.  Commtssioners  cannot  give  a 

second  notice  for  the  organi- 
zation of  anew  district  where 
a  meeting  has  been  held  and 
officers  chosen  under  the  first 
notice,  176 

7.  A    commissioner   of   common 

schools  is  answerable  only  for 
moneys  which  come  into  his 

hands, 184 

S.  Commissioners  of  com.  schools 
must  furnish  answers  to  ap- 
peals brought  from  their  deci- 
sion in  refusing  to  alter  a 
school  district, 187 

9.  Commissioners  of  com.  schools 

must  mckke  an  ^nnttal  account 
in  writing  I©  their  successors 
in  office,  ot  all  school  moneys 
receired  and  expended  by 
them, 189 

10.  A  transfer  of  vouchers  is  not  a 
sufficient  account, 189 

11.  If  commissioners  neglect  to  ac- 
count, they  may  be  prosecut- 
ed by  their  successors, 189 

12.  If  a  commissioner  of  common 
schools  absconds  with  school 
moneys  in  his  hands,  it  is  a 
loss  to  the  town, 234 

15.  A  commissioner  who  has  sign- 
ed a  receipt  for  school  moneys, 
in  conjunction  with  his  col- 
leagues, is  not  answerable, 
unless  the  moneys  actually 
come  into  his  hands, 234 

14.  Quere?  Whether  two  com- 
missioners can  make  a  valid 
apportionment  of  the  school 
moneys  ? 256 

15.  Commissioners  of  com.  schools 
may  certify  that  more  than 
$400  is  necessary  for  a  school- 
house,  after  that  sum  has  been 
expended, 258 

16.  Commissioners  of  com.  schools 
cannot  fix  a  site  for  a  school- 
hoose, ....  261 

17.  Commissioners  of  com.  schools 
have  no  authority  to  receive 
and  decide  upon  appeals  from 
school  districts, 264 

18.  Commissioners  of  com.  schools 
are  entitled  to  such  compen- 
sation for  their  services  as 
may  be  voted  by  the  inhabi- 
tants of  the  town.  (But  see 
note,) 275 

19.  Commissioners  of  com.  schools 
cannot  charge  a  per  centage 
on  the  school  moneys  receiv- 
ed and  paid  over  by  them,  and 

T 


dednct  such  per  centage  from 
those  moneys, 27S 

20.  Commissioners  and  inspectors 
of  common  schoob  are  enti- 
tled to  such  compensation  as 
may  be  voted  by  the  electors 
of  the  town  at  their  annual 
town  meeting,  (hot  see  note,)  2ff 

21.  If  theie  are  but  two  commis- 
sioners of  common  schools  in 
office,  fhey  may  act  as  such 
until  a  third  is  appointed, ... .  292 

22.  Commissioners  of  com.  schools 
have  no  authority  to  declare 
void  the  proceedings  of  school 
district  meetings, S9 

See  Alteration  in  SchoolDittruia, 

6. 
Jlrmual  Meetings,  4. 
Annual  Reports  of  Trusteet^ 

1,6,  7. 
Errors  and  Omissions,  6,  6. 
Joint  School  Districts,  1,  2, 

3,  4. 
JVo««,  11,  14,18,  19. 
Organization  of  School  JHa~ 

tricts,  2. 
Penalties,  1. 
Property  of  School  Districts ^ 

3,9 
Public  or  School  Moneys,  4, 

&. 
Reeorels,  1, 4,  6. 
School  Districts,  3,  16. 
School-House,  8. 
Site  for  School-House,  11. 
Superintendent,  5. 
Taxation  and  Taxes,  72,  75. 
Trustees  of  School  District*, 

37. 
Vacancies  in  Office,  2,3,  4 , 

5. 

CONTRACTS. 
See  Trustees  of  School  DistrietSr 

16,  25,  27,  32. 

CONTROVERSIES. 
See  Alterations  in  School  Dis- 
tricts, 4. 

CORPORAL  PUNISHMENT. 
1.  Coipoml   punishment    has    no 

sanction  but  usage, 101 

CORPORATE  POWERS. 
See  Trustees  of  School  Districts, 
34. 

COSTS  OF  SUIT. 
See  Taxation  and  Taxes,  30. 

COURT  OF  CHANCERY,  DECI- 
SIONS OF. 
4.  Paige,  384, 350 


INDEX   TO    DECISIONS. 


451 


DAMAGES. 
See  Punishment. 

DEBTS. 
See  Property  of  School  Districts, 
9. 

DECISIONS. 
See  Superintendent. 

DEEDS. 
See  Taxation  and  Taxes,  46. 

DISSENSIONS. 
See  School  Districts,  9. 

DISTRESS. 
See  Collector,  3,  4,  6,  7. 

DIVISIONS  OF  TOWNS. 
See  Towns,  Division  of,  1. 

DOMICIL. 
See  Residence. 

DOUBLE  DISTRICTS. 
See  Joint  School  Districts. 
EDMESTON. 
See  Toum  Funds  and  Lands,  3. 

ELECTION. 
1.  An  election  need  not  be  held  in 

the  day  time, 146 

a.  The  annua)  election  in  a  school 
district  having  been  neglected 
foi  two  years,  the  Superinten- 
dent will  order  one  to  be  held,  202 
S.  District  officers  duly  elected 
cannot  be  displaced  at  an  ad- 
journed meeting  on  a  reconsi- 
deration of  the  choice  before 

made, 280 

See  Annual  Meetings,  1,  4. 

Commissioners   of  Common 

Schools,  6. 
Records,  6. 
Trustees  of  School  Districts, 

19. 
Viaeancies. 

ENUMERATION  OF  CHILDREN. 
See  Children,  6,  10,  11,  13. 

ERRORS  AND  OMISSIONS. 

1.  An  error  or  omission  in  the  as- 

sessment mil  of  the  town  may 
be  corrected  or  supplied  by 
the  trustees  of  a  school  dis- 
trict in  making  out  a  tax  list,      2 

2.  An  omission  on  the  part  of  the 

trustees  to  comply  with  a  pro- 
vision of  law  before  the  act 
containing  it  has  been  publish- 
ed and  distributed,  ought  not 
to  prejudice  the  equitable 
rights  of  the  district, 9 

3.  Errors  of  form  in  the  annual  re- 

ports of  school  districts  may 
be  corrected, 36 


4.  An  error  being  shown  in  count- 

ing the  votes  at  a  district  meet- 
ing for  a  tax  for  building  a 
school-house,  a  new  meeting 
will  be  ordered, 128 

5.  When    defective    reports    are 

made  by  trustees  of  school  dis- 
tricts, commissioners  should 
give  time  to  correct  them,  and 
retain  a  portion  of  the  public 
money  in  their  hands  to  abide 
the  result  of  such  correction,  181 

6.  Errors  committed  by  the  com- 

missioners of  common  schools 
in  apportioning  the  school  mo- 
neys, cannot  be  corrected  by 
their  successors  in  office, with- 
out an  order  from  the  Super- 
intendent,   297 

See  Records,  1,  2,  3,  5. 

School  Districts,  15,  17. 
Taxation  and  Taxes,  53. 
EVENING  SCHOOLS. 

Evening  schools  may  be  kept  in 
school  districts  in  Albany,  un- 
under  certain  restrictions,  ...  211 
EXECUTORS. 

Executors  are  to  be  taxed  where 
they  reside  for  the  personal 
property  in  their  possession  or 
under  the\r  control, 157 

See  Taxation  and  Taxes,  47. 

EXEMPTION  FROM  TAXATION. 

See  Ministers  of  the  Gospel,  1, 
2,3,  5. 
JVon-Residents,  1,  2,  5,  6. 
School-House,  1. 
Taxation  and  Taxes,  57. 
Votes  and  Voters,  9. 

EXEMPTION  FROM  TUITION. 
See  Indigent  Persons. 

Trustees  of  School  Districts, 

21. 
Tuition. 

FABIUS. 
See  Town  Funds  and  Lands,  2. 

FACTORY. 
See  JVon-Residents,  10. 
FENCE. 
See   .Appendages    to    a    School- 
House,  2. 

FUEL. 

1.  When  fuel  is  furnished  in  kind, 

it  must  be  apportioned  ac- 
cording to  the  time  each  scho- 
lar has  attended  school, 39 

2.  Unless  fuel  is  provided  by  tax, 

it  must  be  furnished  by  those 
who  send  children  to  schod. 


462    ' 


INDEX    TO   DECISIONS. 


If  any  person  neglects  to  fur- 
nish his  proportion  of  fuel, 
the  amount  may  be  included 
in  the  rate  bill  or  sued  for,...     77 

8,  The  only  three  legal  modes  of 
providing  fuel  explained,... .  113 

A.  Fuel  provided  for  school  districts 
must  not  be  used  for  meetings 
held  in  the  school-house,. . . .   156 

5.  Fuel,  when  furnished  in  kind, 

must  be  in  proportion  to  the 
number  of  children  sent  to 
school,  and  the  number  of 
days' attendance, 170 

6.  Inhabitants   of  school  districts 

cannot  by  a  vote  to  that  effect, 
authorize  their  trustees  to  pro- 
vide fuel  in  any  other  mode 
than  that  prescribed  by  law,  .  264 
See  JVon- Residents,  12, 

Taxation  and  Taxes,  20,  60, 
Teacher,  7. 

GLOBES. 
See  Taxation  and  Taxes,  54. 

GOODS  AND  CHATTELS. 
See  Collector,  4. 

GOODS  IN  A  STORE. 
See  Taxation  and  Taxes,  12,  18. 

GOSPEL  AND  SCHOOL  LOTS. 
See  Town  Funds  and  Lands,  4,  6. 

GRASS  LAND. 
See  ^on- Residents,  14. 

GUARDIANS. 
See  Taxation  and  Taxes,  47. 
HIGHWAY  LABOR. 
See  Votes  and  Voters,  3,  7. 

HOLIDAYS. 
See  Schools,  6. 

INDIAN  CHILDREN. 
If  there  are,  within  the  bounda- 
ries of  a  school  district,  Indi- 
an children  whose  education 
is  provided  for  by  special  en- 
actments, they  must  not  be 
included  in  the  annual  reports 

of  the  district, 343 

See  Annual  Meetings,  7. 

Property  of  School  Districts, 
10. 
INDIAN   LANDS. 
If  there  are  Indian   lands  within 
the  limits  of  a  town,   those 
lands  may  be  included  within 
the  boundaries  of  school  dis- 
tricts  343 

INDIGENT  PERSONS. 
1.  Indigent   persons   may  be  ex- 
empted from  the  payment  of 
•chool  bills,  whether  there  is 


public  money  to  be  applied  to 
the  term  or  not, M 

2.  The  tuition  of  indigent  pupils 

cannot  be  paid  out  of  the  pub- 
lic money, 205 

3,  The  exemption  of  indigent  per- 

sons from  the  payment  of  rate 
bills,  is  a  matter  of  discretion 

with  trustees, 241 

See  Children,  8. 

IMPROVEMENTS. 
See  Assessment  Roll  of  Toum,  3. 

INHABITANTS  OF  SCHOOL 
DISTRICTS. 
Inhabitants  of  school  districts  have 
not  power  to  alter  the  boun- 
daries of  their  districts, IS 

See  Fuel,  6. 
Librarian. 
Libraries,  3. 

Public  or  School  Moneys,  29. 
Rate  Bill,  1. 
Site  for  School-House,  4,  5, 

12,  14. 
Taxation  and  Taxes,  6,  10, 
25,  60,  62,  63,  65,  69,  76, 
80. 
TeacJiers,  26. 
Trustees  of  School  Districts, 

16,  38. 
Votes  and  Voters,  14. 
INSPECTORS  OF  COMMON 
SCHOOLS. 

1.  Teachers  in  joint  school  districts 

may  be  examined  by  the  in- 
spectors of  cither  town, 3S 

2.  Inspectors  of  common  schods 

must  determine  the  degree  of 
learning  and  ability  necessary 
for  a  teacher, 42 

3.  Inspectors  of  common  schools 

may  refuse  to  give  a  teacher  a 
certificate  from  their  personal 
knowledge  that  his  moral  cha- 
racter is  not  good 4f 

4.  Inspectors  may  annul  a  certifi- 

cate on  account  of  the  immo- 
ral character  of  the  teacher, 
although  he  may  perform  all 
his  duties  in  school  properly,.  40 
6.  Three  inspectors  must  sign  a 
certificate  of  qualification  for  a 
teacher,  in  order  to  give  it  va- 
lidity      53 

6.  Quere.-Whether  inspectors  can 

annul  a  certificate  except  on 
the  grounds  on  which  their  au- 
thority to  examine  teachers  is 
given? lOl 

7.  In  districts  lying  partly  in  two  or 

more  towns  the  inspectors  o£ 


'  a*- 


INDEX    TO    DECISIONS. 


453 


either  town  may  give  a  certi- 
ficate to  a  teacher,  and  the  in- 
spectors of  any  one  of  the  oth- 
er towns  may  annul  it, 145 

S.  In  districts  lying  wholly  in  one 
town,  three  inspectors  may 
give  a  certificate,  and  the  oth- 
er three  may  annul  it, 145 

9.  The  power  of  inspectors  over 

the  course  of  studies  in  schools 
should,  ordinarily,  be  confin- 
ed to  a  general  supervision  of 
such  studies, 180 

10.  Inspectors  are  inexcusable  for 
giving  incompetent  teachers 
certificates  of  qualification,..  209 

11.  Three  inspectors  must  sign  a 
certificate  of  qualification,. . .   274 

12.  A  separate  examination   of  a 

teacher  by  three  inspectors 
apart  from  each  other,  is  not  a 
compliance  with  the  law,  ...  274 

13.  Inspectors  should  aim  to  ele- 
vate the  standard  of  education 
by  a  rigid  examination  of  tea- 
chers  325 

14.  Inspectors  of  common  schools 
may  give  notice  that  they  will 
meet  at  certain  times  and  pla- 
ces for  the  inspection  of  teach- 
ers; but  this  does  not  exone- 
rate them  from  the  duty  of 
meeting  at  intermediate  times 
when  their  attendance  is  re- 
quired   334 

See  Certificates  of  Qualification, 
1,2,  3,  4,  5,  6. 
Commissioners  of  Common 

Schools,  32. 
Minister  of  the  Gospel,  7. 
Teacher,  3,  6,  7,  9,  12,  16, 
23. 

INTEREST. 
See  Commissioners  of  Common 
Schools,  3. 
Trustees  of  School  Districts, 
7. 

IRREGULARITY. 
After  a  lapse  of  months  proceed- 
ings will  not  be  disturbed  on  a 
mere  allegation  of  irregularity,  116 

JOINT  SCHOOL  DISTRICTS. 

1.  In  altering  school  districts  lying 

partly  in  two  or  more  towns,  a 
majority  of  the  commissioners 
of  each  town  must  concur,..     23 

2.  Joint  districts  can  only  be  alter- 

ed by  the  concurrence  of  the 
commissioners  of  all  the  towns 
of  which  they  constitute  a 
part, 172  ; 


3.  The  consent  of  the  trustees  of 

a  joint  district  to  an  alteration 
does  not  authorize  the  com- 
missioners of  one  town  to 
make  it  without  the  concur- 
rence of  the  commissioners  of 
the  other, 248 

4.  The  number  of  a  joint  school 

district  should  not  be  changed 
without  the  concurrence  of  the 
commissioners  of  all  the  towns 
within  which  the  district  part- 
ly lies 305 

See  Commissioners  of  Common 
Schools,  5. 
Inspectors  of  Common  Schools, 

1,7." 
Organization  of  School  Dis- 
tricts, 1,2. 
Property  of  School  Districts, 

3. 
Taxation  and  Taxes,  5,  16. 
JOURNEYMEN. 
See  Votes  and  Voters,  7. 

JUSTICES  OF  THE  PEACE. 
See  Superintendent,  2. 

LABORERS  ON  CANAL,  &c. 
See  Children,  10. 

LESSEES  AND  LEASES. 
See  J^on- Residents,  9. 
School-House,  10. 
Taxes  and  Taxation,  2. 

LIBRARIAN. 

1.  The  inhabitants  of  school  dis- 

tricts may  appoint  a  librarian, 
and  adopt  regulations  for  his 
government, 2 

2.  The  inhabitants  may  direct  the 

librarian  not  to  deliver  a  book 
to  a  person  who  has  not  re- 
turned one  previously,  or  un- 
til he  has  paid  for  any  injury  it 
may  have  sustained, 290 

LIBRARIES. 

1.  School  district  libraries  are  de- 

signed both  for  those  who 
have  completed  their  common 
school  education  and  those 
who  have  not, 62 

2.  In  the  selection  of  books,  sec- 

tarian and  controversial  sub- 
jects should  be  excluded 262 

3.  School  district  libraries  are  in- 

tended for  the  use  of  all  the 
inhabitants  of  the  district,...  290 

4.  The  right  of  taking  books  from 

the  library  cannot  be  restrict- 
ed to  scholars  attending  the 
district  school,  ........*.. .«,«  290 


^ 


454 


Index  to  decisions. 


See  Librarian,  2. 

Taxation  and  Taxes,  69. 

LOSS  OF  SCHOOL  MONEYS. 
See  Public  or  School  Moneys,  5, 

MAPLE  SUGAR  LOT. 
See  ^on-Resident s,  14. 

MEADOW  LAND. 
See  JVon-Residents,  3. 

MEETING-HOUSE. 
See  Taxation  and  Taxes,  61. 
MEETINGS  IN  SCHOOL  DIS- 
TRICTS, 
gee  Miens,  1. 

Commissioners  of  Common 

Schools,  22. 
Election,  3. 

Errors  and  Omissions,  4. 
Ministers  of  the  Gospel,  6. 
Jfotices,  1,2,  8,  10,  12,  13, 

14,  17,  18,  19,  20. 
School  Districts,  1. 
SUe  for  School-House,  10. 
Taxation  and  Taxes,  69. 
Trustees  of  School  Districts, 

28. 
Vacancies  in  Office,  1,  2. 
Votes  and  Voters. 
MILITARY  SERVICES. 
See  Votes  and  Voters,  9. 

MILL. 
See  Children,  14. 

JVon-Residents,  7. 
MINISTERS  OF  THE  GOSPEL. 

1.  The  real  estate  of  ministers  of 

the  gospel  is  exempt  from  tax- 
ation to  a  certain  amount,  only 
when  occupied  by  them , ... .     22 

2.  Land  occupied  by  a  minister  of 

the  gospel,  as  tenant,  cannot 
be  taxed  unless  its  value  ex- 
ceeds$l,500, 61 

8.  A  minister  of  the  gospel  is  ex- 
empt from  taxation  for  com- 
mon school  purposes  in  the 
same  manner  as  for  other  taxes,   73 

4.  Land  belonging  to  a  minister  of 
the  gospel,  if  leased  to  a  te- 
nant, is  taxable, 90 

B.  The  personal  property  of  a  mi- 
nister of  the  gospel  is  exempt 
from  taxation;  but  if  the  va- 
lue of  his  real  estate  exceeds 
$1,500  he  may  be  taxed  lor 
the  excess, 191 

6.  A  ministerof  the  gospel,  being  a 

freeholder,  may  vote  at  school 
district  meetings, 224 

7.  A  minister  of  the  gospel  cannot 

be  an  inspector  of  common 
schools, 231 


MINOR. 
1.  If  a  minor  is  chosen  clerk  of  a 
school  district,  and  he  officiate* 
in  that  capacity,  his  acts,  so  far 
as  the  public  and  third  persons 
are  concerned,  are  valid,.  • . .     43 

MONTH. 

1.  A  school  month  is  twenty-six 

days,  exclusive  of  Sundays,.     57 

2.  A  school  must  be  kept  twenty- 

six  days  for  a  month,  and  se- 
venty-eight days  for  a  quarter,    98 

NECESSARY. 
See  Taxes  and  Taxation,  4. 

NON-RESIDENTS. 

1.  The  agent  or  servant  of  the  non- 

resident owner  must  reside  on 
the  lot  in  order  to  sabjectsucb 
owner  to  taxation, 141 

2.  A  non-resident  owner  is  taxa- 

ble for  land  occupied  by  an 
agent:  but  not  if  occupied  l)y 
a  tenant:  and  if  it  is  unoccu- 
pied, he  is  taxable  for  so  much 
only  as  is  cleared  and  cultiva- 
ted,       2T 

3.  Non-residents  are  liable  to  be 

taxed  for  pastures  and  mea- 
dows, as  land  cleared  and  cul- 
tivated,      31 

4.  A  non-resident  owner  occupy- 

ing a  lot  by  his  agent  is  taxa- 
ble in  the  same  manner  as 
though  he  resided  in  the  dis- 
trict,       50 

5.  Vacant  unimproved  lots  are  not 

taxable,  if  the  owner  is  a  non- 
resident. Of  a  lot  of  50  acres, 
a  tenant  of  is  regarded  as  the 
agent  of  the  non-resident  own- 
er for  the  remaining  forty,. ..     99 

6.  Non-resident  tenants  cannot  be 

taxed  under  section  seventy- 
eight  of  the  title  relating  to 
common  schools.  (But  see 
note,) 73 

7.  A  saw-mill  having  an  agent  or 

servant  in  charge  of  it  is  taxa- 
ble to  the  non-resident  owner,    82 

8.  Land  occupied  by  an  agent  or 

servant  of  the  non-resident 
owner  is  taxable  to  the  latter,    91 

9.  A  person  leasing  land  at  halves 

of  a  non-resident  owner  is  tax- 
able for  it 94 

10.  A  factory  unoccupied  is  taxa- 

ble to  the  non-resident  owner, 
though  a  house  on  the  same 
lot  is  occupied  by  a  tenant, . .  100 


INDEX    TO    DECISIONS. 


455 


159 


207 


11.  To  subject  the  unimproved 
part  of  a  lot  belonging  to  a 
non-resident  to  taxation,  the 
improved  part  must  be  occu- 
pied by  an  agent  or  servant,  . 

12.  Non-residents  are  taxable  for 
fuel  if  they  own  improved 
lands  in  the  district, 

IS.  Non-residents  are  taxable  for 

lands  used  as  pastures, 270 

14.  Grass  land  and  ploughed  land 
are  taxable  to  the  non-resident 
owner:  but  a  wood  lot  used 
for  manufacturing  maple  sugar 

is  not  taxaljle  to  such  owner,  308 

15.  If  a  non-resident  owner  of  tax- 
able property  sends  his  child- 
ren into  the  district  in  which 
such  property  lies,  for  the  pur- 
pose of  attending  school,  they 
have  a  strong  equitable  claim 
to  be  received,  unless  by  their 
admission  the  school  would 
become  too  crowded, 317 

See  Children,  2. 
Rate  Bills,  3, 
JVotCy  page  44. 

NOTICE. 

1.  A  new  district  being  formedj  a 

notice  to  each  inhabitant  of 
the  time  and  place  for  the  first 
meeting  is  sufficient, 18 

2.  If  the  district  clerk  refuses  to 

give  notice  of  a  meeting  of  the 
inhabitants,  the  notice  may  be 
given  by  the  trustees, 19 

3.  The  provision  requiring  three 

months'  notice  to  trustees  of 
an  alteration  in  their  school 
district  is  intended  for  their 
protection,  and  to  that  end  is 
to  be  benignly  construed,  ...     29 

4.  Unless  some  person  claims  a  re- 

duction of  his  valuation,  trus- 
tees are  not  required  to  give 
notice  of  the  assessment  of  a 

tax, 40 

5-  Trustees  of  school  districts  must 
give  notice  of  the  assessment 
of  a  tax  in  all  cases  where  a 
reduction  is  claimed,  or  where 
the  valuations  of  property  can- 
not be  ascertained  from  the 
last  assessment  roll  of  the  town,   42 

6.  In  altering  school  districts,  no- 

tice ought  to  be  given  to  the 
parties  in  interest,  although 
such  notice  is  not  required  by 
law, 12 

7.  If  the  school  district  offices  are 

all  vacated  by  resignation,  no* 


112 


18<* 


13 


14. 


tice  of  such  resignation  may 
be  given  to  the  town  clerk,. , 

8.  Notices  for   special    meetings 

must  be  in  writing,. .  • . 

9.  A  written  notice  given  by  the 

clerk  of  a  district  in  pursuance 
of  a  verbal  direction  from  the 
tnistees  is  good, 186 

10.  The  proceedings  of  a  meeting 
held  without  any  attempt  to 
give  a  legal  notice  are  not  va- 
lid,    186 

11.  Notice  must  be  given  to  the 
real  parties  in  interest,  where 
the  commissioners  of  common 
schools  take  no  pains  to  sus- 
tain their  proceedings, 187 

12.  Notices  for  special  meetings 
must  be  personally  served,  . .  204 
If  the  clerk  gives  a  verbal  no- 
tice for  a  special  meeting  to 
part  of  the  inhabitants  and  a 
written  notice  to  the  residue, 
the  proceedings  are  not  void, 
but  may  be  set  aside  on  show- 
ing cause, 223 

If  a  wi  itten  notice  of  the  time, 
place,  and  object  of  a  meeting 
called  to  organize  a  school  dis- 
trict, is  left  at  the  house  of  one 
of  the  inhabitants  in  his  ab- 
sence, all  the  others  being  no- 
tified according  to  law  by  per- 
sonal service  of  the  notice,  it 
is  sufficient,  though  the  notice 
so  left  does  not  show  that  the 
meeting  is  called  by  the  com- 
missioners of  common  schools,  269 
Trustees  are  not  entitled  to  no- 
tice of  an  appraisement  until 

after  it  is  made, 259 

In  forming  a  new  district,  no- 
tice of  the  alteration  may  be 
served  on  a  trustee  set  off"  to 

the  new  district, 259 

17.  If  at  an  annual  meeting  a  vote 
is  passed  in  relation  to  the 
erection  of  a  school-house  or 
the  choice  of  a  site,  and  a  spe- 
cial meeting  is  subsequently 
called  under  a  notice  to  recon- 
sider the  proceedings  of  the 
annual  meeting,  it  is  a  suffi- 
cient designation  of  the  object 
of  the  meeting  to  justify  the 
inhabitants  in  rescinding  or 
modifying  such  vote, 353 

18.  When  a  new  district  is  formed, 
if  the  commissioners  of  com- 
mon schools  neglect  to  issue 
a  notice  for  'he  first  district 
meeting,  within  twenty  days, 


15 


16 


imI^ 


%t. 


456 


«NDEX    TO   DECISIONS. 


they  may  Tssue  it  at  a  subse- 
quent time, 358 

19.  If  a  notice  is  issued  for  the  first 
district  meeting  in  a  new  dis- 
trict, formed  without  the  con- 
sent of  the  trustees  of  the  dis- 
trict or  districts  from  which  it 
was  taken,  and  the  time  fixed 
for  such  meeting  is  within 
three  months  after  service  of 
notice  on  such  trustees  of  the 
alteration  made  in  their  dis- 
tricts, the  notice  issued  for 
such  first  district  meeting  is 
void,  and  the  commissioners 
may  issue  another  at  a  subse- 
quent time, 358 

20.  If  the  notice  for  the  first  dis- 
trict meeting  in  a  new  district 
is  not  void,  but  merely  defec- 
tive in  form,  application  may 
be  made  to  the  Superinten- 
dent to  amend  it, 358 

See  Annual  Meetings,  2,  5. 

Alterations  in  School  Dis- 
tricts, 7,  10. 

Appeals,  4. 

Commissioners  of  Common 
Schools,  6. 

School  Districts,  6. 

Taxation  and  Taxes,  59,  70, 
79. 

Trustees,  8, 

OATH. 
See  Assessment  of  Taxes,  1. 

OATH  OF  OFFICE. 
See  Trustees,  5. 
OFFICERS  OF  SCHOOL  DIS- 
TRICTS. 
The  acts  of  an  officer  de  facto 

are  valid  so  far  as  the  public 

and  third  persons  are  concern- 
ed,      16 

See  Aliens,  2. 

Annual  Meetings,  4,  9. 

Commissioners  of  Common 
Schools,  6. 

Elections. 

Minor. 

Penalties. 

Records,  6. 

Resignation. 

Votes  and  Voters,  1,  11. 
OMISSIONS. 
See  Errors  and  Omissions,  1,  2. 

Records,  2,  5.  ;'^ 

Refusal  to  serve,  I.     , 

School  Districts,  17. 
ORGANIZATION  OF  DISTRICTS 
1.  The  formation  of  a  new  town 


does  not  affect  the  organiza* 
tion  of  school  districts.  A  dis- 
trict intersected  by  the  line  of 
division  between  the  new  town 
and  the  town  from  which  it  is 
taken,  becomes  a  joint  district,      li 

2.  On  the  division  of  a  town  and 
the  formation  of  a  new  one, 
the  commissioners  of  common 
schools  of  the  new  town  can- 
not disturb  the  organization  of 
a  school  district  lying  partly  in 
both,  without  the  concurrence 
of  the  commissioners  of  the 
other, Vk..     IS 

See  Commissioners  of   Common 
Schools,  6. 
School  Districts,  2,  3, 12. 
Records,  6. 

PARENTS. 
See  Children,  2.  3,  8,  9. 
Residence,  4. 

PASTURES. 
See  jyon-Residents,  3,  13. 

PERSONAL  PROPERTY. 
See  Executors. 

Ministers  of  the  Gospel,  6. 
Taxation  and  Taxes,  12,  18, 
47,  58,  76. 

PENALTIES. 

1.  Suits  for  penalties  against  dis- 

trict officers  for  neglecting  to 
perform  the  duties  of  their  oi- 
fice,  must  be  brought  by  com- 
missioners of  common  schools,  164 

2.  The  penalty  provided  in  case 

district  officers  neglect  (o  per- 
form the  duties  of  their  office, 
is  intended  for  cases  of  total 

neglect, 164 

See  JVon- Residents,  14. 

PLOUGHED  LAND. 
See  Trustees  of  School  Districts^  12. 
POOR-HOUSES. 

1.  Childien  in  poor-houses  are  not 

to  be  included  in  the  annual 
reports  of  school  districts,  ...     25 

2.  Children  of   the   overseers  of 

poor-houses  are  to  be  enume- 
rated by  trustees  of  school  dis- 
tricts      8S 

See  Children,  14. 

PREMIUMS  FOR  SCHOLARS. 
See  Rate  Bills,  4. 

PRIVATE  PROPERTY. 
See  Site  for  School-House,  1. 

PROCEEDINGS. 
See  Annual  Meetings,  11. 

Commissioners  of  Common 
Schools,  22. 


I 


t 


INDEX    TO    DECISIONS. 


457 


See  Irregularity. 

JVoiice,  10,  11,  13,  17. 

Void  Proceedings. 

Votes  and  Voters,  8,  10,  12. 

PROMISSORY  NOTES. 
See  Trustees  of  School  Districts,  35. 
Taxation  and  Taxes,  36. 

PROPERTY  OF  SCHOOL  DIS- 
TRICTS. 
See  School-House,  3,  4,  5,  6,  17. 

1.  If  a  part  of  the  value  of  the  pro- 

perty of  an  old  district  is  award- 
ed to  a  new  district  on  account 
of  a  person  not  liable  to  be  tax- 
ed in  the  latter  for  a  school- 
house,  the  amount  is  to  be  al- 
lowed to  the  credit  of  all  the 
inhabitants, 64 

2.  No  appraisement  of  a  school- 

house  and  other  property  is 
necessary  when  persons  are 
set  off  from  one  existing  dis- 
trict to  another, 66 

S.  In  apportioning  the  value  of  a 
school-house  belonging  to  a 
district  lying  partly  in  two 
towns,  the  commissioners 
should  follow  the  assessment 
rolls  of  the  towns, 78 

4.  An  appraisement  of  a  school- 

house,  postponed  for  good 
cause,  will  be  confirmed  when 
made  subsequently  to  the  for- 
mation of  the  new  district, ...     81 

5.  Mode  of  proceeding  in  apprais- 

ing school-houses  explained,.     88 

6.  No  person  who  is  set  to  a  new 

district  can,  without  his  con- 
sent, be  deprived  of  his  right 
to  receive  a  portion  of  the  va- 
lue of  the  school-house  of  the 
district,  from  which  he  is  ta- 
ken,      92 

7.  In  appraising  the  school-house 

and  property  of  a  district  lying 
partly  in  two  towns,  the  com- 
missioners of  both  must  unite,  144 
S.  The  apportionment  of  the  value 
of  the  school-house  and  other 
property  of  a  district,  need  not 
be  filed  with  the  town  clerk 
in  order  to  give  validity  to  the 
proceedings, 144 

9.  In  appraising  a  school-house, 

when  a  new  district  is  formed, 
the  commissioners  must  de- 
duct debts  due  from  the  dis- 
trict retaining  the  school- 
house,  167 

10.  When  persons  are  annexed  to 
a  new  district  without  their 


consent,  and  are  not  liable  to 
be  taxed  in  it  for  a  school- 
house,  the  portion  of  the  value 
of  the  school-house  in  the  dis- 
trict from  which  they  are  ta- 
ken allowed  to  the  new  dis- 
trict, on  account  of  the  taxa- 
ble property  of  such  persons, 
goes  to  the  benefit  of  all  the 
inhabitants, 196 

11.  Every  person  set  ofl^  to  a  new 
district  is  entitled  to  his  share 

of  the   value   of  the   school-  ^,  J||; 
house  from  which  he  is^taken, 
whether  he  has  contributed  to 
its  erection  or  not, 246 

12.  If  through  an  erroneous  im- 
pression as  to  the  title  of  the 
site  of  the  school-house,  the 
commissioners  appraise  it  at 
too  low  a  sum,  the  proceeding 
is  not  void,  but  may  be  vacat- 
ed on  an  appeal, 258 

13.  If  all  the  persons  set  off  to  a 
new  district  relinquish  their 
interest  in  the  school-house  in 
the  old  district,  it  need  not  be 
appraised, 259 

14.  When  a  school  district  is  dis- 
solved, the  value  of  the  school- 
house,  and  other  property, 
ought  to  be  distributed  among 
the  inhabitants  according  to 
their  taxable  property, 270 

See  Site  for  School- House,  9. 
Taxation  and  Taxes,  38. 
Trustees  of  School  Districts, 
29. 

PROPERTY,  RIGHT  OF,  IN  THE 
SOIL. 

See  Taxation  and  Taxes,  38. 
PUNISHMENT. 

If  a  teacher  inflicts  unnecessari- 
ly severe  punishment  on  a  pu- 
pil, he  is  answerable  in  dama- 
ges. His  government  should 
be  mild  and  parental;  but  he 
is  responsible  for  the  mainte- 
nance of  discipline  in  his 
school, 101 

See  Corporal  Punishment,  1. 
Teachers,  13. 

PUBLIC  OR  SCHOOL  MONEYS. 

1.  If  the  commissioners  of  common 

schools  know  a  district  report 
to  be  erroneous,  the  public 
money  may  be  withheld,  and 
the  case  submitted  to  the  Su- 
perintendent      20 

2.  If,  for  causes  not  to  be  control- 

led, a  school  has  not  been  kept 


468 


INDEX    TO    DECISIONS. 


ttiree  tndmlis  during  the  pre- 
ceding year  hy  a  qualified  tea- 
cher, the  district  will  be  al- 
lowed a  share  of  the  public 
money, 34 

3.  All  children  residing  in  a  dis- 

trict are  to  have  the  benefit  of 
the  public  money,  if  they  at- 
tend school,  without  reference 
to  their  ages, 34 

4.  If  school  moneys  apportioned  to 

school  districts  cannot  be  re- 
covered of  the  commissioner 
who  received  them,  the  loss 

falls  on*the  districts, 41 

B.  If  a  bank  fails,  and  the  commis- 
sioners of  common  schools 
have  in  their  hands  hills  of  the 
bank,  received  as  school  mo- 
neys, the  loss  falls  on  the 
school  districts, 51 

6.  The  public  money  can  only  be 

applied  to  the  benefit  of  such 
schools  as  are  established  by 
trustees  of  school  districts,. .     55 

7.  If  a  district  directs  the  public 

moneys  to  be  divided,  the 
vote  should  be  passed  during 
the  year  in  which  the  moneys 
are  to  be  applied, 62 

8.  Public  money  cannot  be  paid  to 

a  district  unless  a  school  has 
been  kept  therein  three 
months  by  a  qualified  teacher, 
and  unless  all  moneys  receiv- 
ed the  previous  year  have  been 
paid  to  him, 64 

9.  The  public  money  must  be  paid 

to  teachers  for  services  ren- 
dered between  the  January 
preceding  and  the  January 
following  the  time  of  receiv- 
ing it, 70 

10.  If  a  jierson  agrees  to  pay  lor  a 
certain  number  of  scholars  he 
is  to  have  the  benefit  of  the 
public  money  in  reduction  of 
their  school  bills, 83 

11.  If  a  school  district  loses  its  por- 

tion of  the  public  money  in 
consequence  of  mislaying  its 
annual  report,  the  loss  will, 
on  application  to  the  Superin- 
tendent, be  allowed  out  of  the 
moneys  distributed  the  next 
year 99 

12.  If,  from  unavoidable  necessity, 
a  balance  of  the  public  moneys 
remains  in  the  hands  of  the 
trustees,  the  district  may  re- 
ceive its  share  of  the  public 
moneys  the  next  year, 106 


13.  A  school  district  formed  in  Oc> 
tober,  may  receive  a  portioa 
of  the  public  money,  when 
the  districts,  from  which  it 
was  taken,  have  complied  with 

the  law, 110 

14.  If  a  school  has  not  been  kept 
in  a  district  three  months  dur- 
ing the  preceding  year,  by  a 
qualified  teacher,  in  conse- 
quence  of  any  over-ruling  ne- 
cessity, the  district  will  be  al- 
lowed a  portion  of  the  public 
money Ill 

15.  When  a  new  district  is  formed, 
the  public  moneys  on  hand  in 
the  old  di«-trict should  be  equi- 
tably divided, 125 

16.  Public  moneys  are  to  be  equi- 
tably divided  when  a  new  dis- 
trict is  formed, 137 

17.  Public  money  should  be  fairly 
divided  between  the  summer 
and  winter  terms, 162 

18.  A  vote  to  divide  public  money 
into  portions  may  be  taken  at 
any  time  before  the  money  is 
expended, 109 

19.  A  district  cannot  make  a  se> 
cond  division  of  the  public 
money  after  a  rate  bill  has 
been  made  out  and  delivered 

to  the  collector, 169 

20.  If  trustees  pay  public  money 

to  a  teacher  not  qualified,  they 
may  be  prosecuted  for  the 
amount  as  for  a  balance  in 
their  hands 212 

21.  If  one  district  is  united  to  ano- 
ther, the  public  money  belong- 
ing to  either  must  be  applied 

for  the  common  benefit  of  all,  224 

22.  Whvn  a  new  district  is  formed 
and  goes  into  operation  before 
the  apportionment  of  school 
moneys  is  made,  it  must  re- 
ceive its  share  of  those  mo- 
neys,   237 

23.  If  a  district  entitled  to  receive 
the  public  money  is  dissolved, 
and  part  of  it  annexed  to  a 
district  not  so  entitled,  the 
latter  can  receive  no  public 
money  in  consequence  of  such 
accession, 2^ 

24.  An  apportionment  of  the  school 
moneys  after  the  time  pre- 
scribed by  law,  is  good,. ....  296 

25.  If  a  district  is  divided  immedi- 
ately after  the  school  moneys 
are  distributed,  and  the  per- 
sons set  off  continue  to  send 


INDEX   TO    DECISIONS. 


459 


to  school  in  the  district,  those 
moneys  should  be  applied  for 
their  benefit  in  common  with 
others, 276 

26.  Treasurers  of  counties  cannot 
deduct  from  the  school  mo- 
neys the  commission  of  one 
per  cent,  to  which  they  are 
entitled, 2  8 

27.  If  a  teacher  is  taken  sick,  and 
another  cannot  be  procured  in 
time  to  have  the  school  kept 
three  months,  the  Superin- 
tendent will,  on  showing  the 
facts,  allow  the  district  a  share 

of  the  public  money, 294 

28.  If  public  money  is  paid  to  a 
teacher  not  qualified,  and  the 
trustees  or  inhabitants  replace 
out  of  their  private  funds, 
the  amount  so  paid,  the  dis- 
trict will  be  allowed  to  parti- 
cipate in  the  apportionment  of 
the  public  moneys, 298 

29.  If  trustees  engage  a  teacher 
for  a  specified  term,  and  the 
inhabitants  of  a  school  dis  rict, 
without  good  cause,  withdraw 
their  children  from  the  district 
school,  and  send  them  to  a 
private  teacher,  the  Superin- 
tendent will  allow  the  greater 
part  of  the  public  money  to  be 
applied  to  the  term  for  which 
the  teacher  was  engaged  by 
the  trustees, 301 

10.  The  public  money  cannot  be 
paid  to  teachers  for  services 
•• .  rendered  during  the  year  pre- 
ceding the  receipt  of  such  mo- 
neys.   313 

t\.  If  a  school  district  formed  nine 
months  before  the  first  of  Ja- 
nuary, is  unable  to  procure  a 
suitable  room  for  keeping 
school,  and  cannot  succeed 
in  building  a  school- house  in 
time  to  have  a  school  kept 
three  months  by  a  qualified 
teacher,  the  Superintendent 
will,  on  application  to  him,  al- 
low such  district  a  portion  of 
the  public  moneys,  if  the  time 
during  which  the  inhabitants 
have  contributed  to  the  sup- 
port of  a  school  by  a  qualified 
teacher  in  the  new  district, 
and  in  the  district  from  which 
it  was  taken,  is  equal  to  three 
months, 355 

S€e  Annital  Reports  of  Trustees, 
1,3.5,6,7. 


See  Children,  I,  12. 

Commissioners  of   Common 

Schools,  1,  2,  7,9,  12,  13, 

14,  19. 
Errors  and  Omissions,  5,  6. 
Indigent  Persons,  1,  2. 
Schools,  5,  7. 
School  Districts,  17. 
Teachers,  12,  17,  19,  22,  24. 
Tovims,  Division  of,  1,  2,  3. 
Trustees  of  School  Districts, 

7,  11,  13,  20. 

PURCHASES  BY  INDIVIDUALS.. 
See  School  Districts,  2,  7. 

Taxation  and  Taxes,  27,  58. 
PURCHASER. 
See  Taxation  and  Taxes,  1. 

QUARTER   OF  A  YEAR. 
A  quarter  of  a  year  is  ninety-one 

days, 57 

See  Monf  ,  '^. 

RAIL-ROAD  COMPANIES. 
See  Taxation  and  Taxes,  78. 
RATE  OR  SCHOOL  BILLS. 

1.  In  making  out  rate  bills  to  pro- 

vide for  the  payment  of  teach- 
ers' wages,  inhabitants  of 
school  districts  can  only  be 
charged  for  so  much  time  as 
their  children  have  actually 
attended  school, 15 

2.  The  jurisdiction  of  the  trustees 

and  collector  of  a  school  dis- 
trict, in  collecting  rate  bills 
by  warrant,  is  limited  to  the 
district, 78 

3.  Rate  bills  must  be  collected  of 

residents  by  warrant,  and  of 
non-residents  by  prosecution,    78 

4.  Trustees  have   no  right  to  in- 

clude in  a  rate  bill  a  sum  of 
money  to  procure  premiums 
for  scholars;  nor  can  a  tax  be 
laid  for  the  purpose, 124 

5.  Rate  bills  for  teachers'  wages 

should  be  promptly  made  out 
and  collected, *.     258 

6.  Trustees  must  make  out  rate 

bills  from  the  lists  kept  by  the 

teacher, 258 

See  Collector,  13. 
Children,  5. 
Fuel,  2.  3,  4. 
Indigent  Persons,  1 ,  3. 
Public  or  School  Moneys,  19. 
Schools,  8. 
Suits.  1. 

Taxation  and  Taxes,  15,  34. 
Tax  Lists,  2. 

Teachers,  9,  15,  19,  20,  22, 
25,  27. 


460 


INDEX    TO    DECISIONS. 


See  TVustees  of  School  Districts, 
2,  11,  21,  23,30. 
Warrant,  5. 

REAL  ESTATE. 
See  Assessment  Roll  of  Town,  3. 
Ministers  of  the  Gospel,  1 ,  5. 
Taxation  and  Taxes,  12,  13, 
18,  26,  27,  78. 

RECORD  BOOK. 
See  Taxation  and  Taxes,  45. 
RECORDS. 

1.  The  formation  of  a  new  district 

not  having  been  recorded  at 
the  time  it  was  formed,  on  ap- 
plication to  the  Superinten- 
dent of  Common  Schools,  the 
commissioners  will  be  author- 
ized to  enter  their  proceedings 
of  record, 

2.  If  the  record  of  an  alteration  in 

a  school  district  does  not  show 
that  the  consent  of  the  trus- 
tees was  obtained,  the  fact 
may  be  proved  by  other  testi- 
mony, and  the  omission  does 
not  invalidate  the  proceedings, 

8.  Where  the  proper  records  have 
not  been  made,  the  legal  ex- 
istence of  school  districts  will 
be  presumed,  if  they  have 
been  organized  for  a  length  of 
time, 

4.  The  loss  of  the  record  of  a 
school  district  does  not  disor- 
ganize it,  but  the  commission- 
ers should  describe  the  boun- 
daries anew, 103 

6.  An  omission  to  record  an  altera- 
tion in  a  school  district  does 
not  render  the  proceeding 
void, 146 

6.  If  a  school  district  has  been  re- 

cognized as  legal  for  a  length 
of  time,  regularity  in  its  orga- 
nization will  be  presumed  in 
Ihe  absence  of  the  proper  re- 
cord, and  the  commissioners 
of  common  schools  cannot 
form  the  district  anew  and  or- 
der an  election  of  officers  un- 
der such  circumstances, 197 

7.  A  school  district  reported  to  the 

Superintendent  from  the  year 
1822  to  1835  was  held  to  have 
a  legal  existence,  though  the 
record  of  its  organization  was 
signed  by  only  one  of  the  com- 
missioners of  common  schools ,  248 
See  Commissioners  of  Common 
Schools,  5. 
School  Districts,  10,  15,  16. 


79 


79 


REFUSAL  TO  SERVE. 

1.  A  refusal  to  serve  as  an  officer 

of  a  school  district  vacates  the 
office, 314 

2.  A   refusal   to    serve   must    be 

shown  by  an  express  declara- 
tion, and  cannot  be  inferred 
from  a  neglect  to  perform  the 

duties  of  the  office, 314 

See  Trustees  of  School  Districts,  19. 

RELIGIOUS  OPINIONS. 
See  Teacher,  6 . 

REMOVALS. 
See  Children,  11. 

RENEWAL  OF  WARRANT. 
See  Warrant,  1,  2,  3,  4. 

RENT  OF  SCHOOL  ROOM. 
See  School-House,  10. 
Schools,  1. 

Taxation  and  Taxes,  23. 
Trustees  of  School  Districts,  9. 
REPAIRS. 
See  School-House,  10. 
Trustees,  10. 

Taxation  and  Taxes,  8,  20,  79. 
RESIDENCE. 

1.  A  man  of  lawful  age  hired  out 

for  a  year  or  six  months,  and 
having  no  family,  is  a  resident 
of  the  district  in  which  he  is 
hired, 88 

2.  A  person  hiring  out  his  services 

for  a  limited  period  to  an  in- 
habitant of  a  school  district, 
must,  if  of  age,  be  deemed  a 
resident  of  the  district,  unless 
he  has  a  family  and  domicil 
elsewhere, 292 

3.  If  a  person  removes  from  one 

school  district  into  another  in 
the  same  village,  and  takes 
lodgings  for  his  family  until 
he  can  find  a  permanent  place 
of  residence  to  suit  him,  he  is 
a  taxable  inhabitant  of  the  dis- 
trict into  which  he  has  so  re- 
moved  305 

4.  The  residence  of  the  parent  is 

the  residence  of  the  child,  ..  317 
See  Children,  4. 
Rate  Bill,  3. 
Votes  and  Voters,  2, 4. 

RESIGNATION. 
A  verbal  resignation   by  district 

officers  is  good, l|2 

See  JVbtice,  7. 

SATURDAY. 
Sec  Schools,  4,  5. 
Teachers,  IS. 


INDEX   TO   DECISIONS. 


461 


SAW-MILL. 
See  JVon-Residents,  7. 

SCHOOLS. 

1.  If  the  children   residing  in  a 

school  district  are  too  numer- 
ous to  be  instructed  in  one 
school,  the  trustees  may  hire 
one  or  more  additional  teach- 
ers and  the  neces.sary  rooms 
for  the  accommodation  of  the 
additional  schools,  when  au- 
thorized by  a  vote  of  the  in- 
habitants; but  the  compensa- 
tion of  the  teachers  must  be 
provided  for  in  the  same  man- 
ner as  though  only  one  in- 
structor had  been  employed,.       4 

2.  Schools  should  not  be  kept  more 

than  six  hours  per  day, 88 

S.  Select  schools  cannot  be  kept  in 

district  school-houses, 119 

4.  School  may  be  kept  on  Sunday 

for  the  benefit  of  persons  who 
observe  Saturday  as  holy  time, 
and  the  teacher  must  be  paid 
for  that  day  by  those  who  send 
to  school , 138 

5.  A  teacher  may  receive  the  pub- 

lic money  if  he  dismisses  his 
school  on  Saturday  and  keeps 
it  open  on  Sunday, 138 

6.  On  certain  holidays  schools  may 

be  dismissed, 139 

7.  If  a  school  has  not,  in  conse- 

quence of  any  overruling  ne- 
cessity, been  kept  3  months 
by  a  qualified  teacher,  the  dis- 
trict will  be  allowed  a  share  of 
the  public  money  on  applica- 
tion to  the  Superintendent,.,   153 

8.  If  a  child  attends  school  half  a 

day,  it  is  to  be  reckoned  as 
half  a  day, 162 

9.  The  scholars  may  be   diviiied 

and  put  in  different  rooms,  . .  208 

10.  Schools  must  be  kept  in  the 
district  school  house,  except- 
ing in  extraordinary  cases,. . .  271 

See  Children,  2, 3,  4,  8.  9. 
Evening  Schools. 
lAbraries,  4. 
JVon- Residents,  15. 
Public  or  School  Moneys,  2, 

6,8,  14,31. 
School  Districts,  4,  8,  17. 
School-House,  9. 
Teachers,  5,  13. 
Trustees  of  School  Districts, 
15. 

SCHOOL  BILLS. 
See  Rate  Bills. 

Taxation  and  Taxes,  15. 


SCHOOL  DISTRICTS. 

1.  The  vote  of  a  district  meeting 

declaring  the  district  dissolved 
has  no  binding  force, 63 

2.  Purchases  subsequent  to  the  or- 

ganization of  a  school  district 
are  not  to  affect  its  bounda- 
ries      69 

3.  Commissioners      of     common 

schools  cannot  interfere  with 
the  organization  of  a  school 
district,  while  an  appeal  be- 
fore the  Superintendent,  in 
respect  to  such  organization, 
is  pending, 69 

4.  New   districts  should    not  be 

formed  without  sufficient 
strength  to  support  respecta- 
ble schools, 107 

5.  School  districts  must  be  com- 

posed of  contiguous  farms,  . .  109 

6.  Where  a  new  district  is  formed, 

and  the  trustees  of  the  district 
from  which  it  is  taken  do  not 
consent  to  the  alteration,  no 
act  can  be  done  in  pursuance 
of  it  until  three  months  after 
notice 122 

7.  Purchases  of  land  subsequent  to 

the  formation  of  a  new  dis- 
trict do  not  affect  its  bounda- 
ries    128 

8.  School  districts  should  not  be  so 

reduced  in  strength  as  to  be 
unable  to  maintain  respectable 
schools, 136 

9.  Dissensions  in  school  districts 

cannot  be  allowed  to  be  made 
a  ground  for  altering  or  break- 
ing them  up, 186 

10.  If  a  district  has  had  no  clerk 
or  record  for  two  years,  it  is 
not  for  that  reason  dissolved,.   146 

11.  Schcol  districts  should  not  be 
formed  with  less  than  forty 
children  between  five  and  six- 
teen years  of  age, 220 

12.  If  part  of  the  inhabitants  of  a 
district  separate  from  the  rest, 
and  build  a  private  school- 
house,  it  will  not  be  deemed 
a  rea^jon  for  organizing  them 
into  a  separate  district, 238 

13.  The  bad  management  of  the 
affairs  of  a  district  is  not  a  suf- 
ficient  reason   for  setting  oft 

an  inhabitant, 265 

14.  A  district  ought  not  to  be  al-     y 
tered  for  the  temporary  conve- 
nience of  an  individual,. ....  255 

15.  If  a  new  district,  formed  with 
the  consent  of  the  trustees  of 


462 


INDEX  TO  DECISIONS. 


the  districts  from  which  it  was 
taken,  has  gone  on  in  good 
faith  to  build  a  school-house, 
and  a  school  has  been  kept  ten 
months,  irregularities  in  its  for- 
mation wilt  not  be  noticed,  af- 
ter the  lapse  of  two  years,  if 
the  record  of  the  proceedings 
of  the  commissioners  in  form- 
ing it  is  regular,  and  no  ap- 
peal has  been  made, 295 

16.  Commissioners  of  common 
schools  will  not  be  permitted 
to  deny  the  legal  existence  of 
a  district  when  their  own  re- 
cords show  it  to  have  been  re- 
gularly formed,  295 

17.  If  a  new  district  is  formed  so 
soon  before  the  first  of  Janua- 
ry as  not  to  have  had  time  to 
have  a  school  kept  S  months 
by  a  qualified  teacher,  and  if 
part  of  said  district  is  taken 
from  a  district  in  which  a 
school  has  been  kept  three 
months  by  a  qualified  teacher, 
and  the  residue  from  territory 
not  belonging  to  any  district, 
such  new  district  should  be  al- 
lowed a  share  of  the  public 
money, 349 

See  Alterations  in  School  Dis- 
tricts. 

Indian  Lands. 

Inhabitants  of  School  Dis- 
tricts, 1. 

JVoHce,  1.  3,  6,  14,  16,  18, 
19,  20. 

Property  of  School  Districts. 

Public  or  School  Moneys,  5, 
7,  8,  11.  12,18,  !4,  lb,  16, 
21,22,  23,  25,31. 

Records,  1,  2,  3,  4,  6,  7. 

School-House,  5,  6.  J 7. 

Superintendent,  3,  5,  7. 

Taxation  and  Taxes,  27,  42, 
65. 

SCHOOL-HOUSE. 

1.  A  tenement  leased  for  a  school- 

house  cannot  be  taxed, 8 

2.  Persons  annexed  to  a  school  dis- 

trict, after  the  school-honse 
has  been  built  and  paid  for, 
cannot  be  compelled  to  con- 
tribute to  the  expense  of  its 

construction , 32 

8.  A  person  set  off"  from  one  school 
district  to  another  is  not  enti- 
tied  to  any  part  of  the  value  of 
the  school-house  or  property 
of  the  distr  ct  from  which  he 
is  detached, S5 


4.  The  value  of  the  school-houM 

and  other  property  is  only  to 
be  apportioned  when  a  new 
district  is  lormed, 3§ 

5.  When  a  new  district  is  formed, 

the  school-house  and  other  pro- 
perty of  the  district,  from  which 
it  is  taken,  must  be  appraised 
and  apportioned  at  the  same 
time, 37 

6.  When  a  new  district  is  formed, 

and  a  sum  of  money  is  receiv- 
ed as  its  proportion  of  the  va- 
hie  of  the  school-house  of  the 
district  from  which  it  is  taken, 
this  sum  must  be  applied  to 
the  erection  of  a  school-house 
in  the  new  district,  and  in  re- 
duction of  the  taxes  of  the 
persons  on  account  of  whose 
property  it  was  received,. ...     39 

7.  A  school-house  built  by  sub- 

scription tnay,  if  under  the 
control  of  the  trustees,  be  kept 
in  repair  by  a  tax  on  the  pro- 
perty of  the  district, 47 

8.  The  certificate  of  the  commis- 

sioners that  more  than  four 
hundred  dollars  is  necessary 
for  a  school-house,  should  be 
given  before  the  additional 
sum  is  voted,    48 

9.  Trustees  of  school  districts  can- 

not allow  any  part  of  the  dis- 
trict school-house  to  be  occu- 
pied excepting  for  the  purpo- 
ses of  the  district  school, . ...     51 

10.  A  school-house  may  be  kept  in 
repair  by  tax,  if  the  district 
has  a  lease  of  the  land  on  which 

it  stands 61 

11.  School-houses  may  be  used  for 
Sunday  schools, 91 

12.  School  houses  cannot  be  used 
for  any  other  than  common 
school  purposes,  excepting  by 
general  consent, 99 

IS.  A  vote  of  a  majority  of  the  in- 
habitants does  not  render  it 
proper  to  use  school-houses  for 
any  other  than  their  legitimate 
purposes, 99 

14.  A  school-house  cannot  be  sold 
under  execution  on  a  judg- 
ment against  the  trustees  of 
the  district, 127 

15.  There  can  be  no  partnership  in 
the  erection  of  a  district  school- 
house,  201 

16.  No  more  money  can  be  ex- 
pended on  a  school-house  than 
is  necessary  for  common  school 
purposes, 


INDEX   TO   DECISIONS. 


17.  In  mpportioning  the  value  of  a 
school-house  when  a  new  dis- 
trict is  formed,  the  omission  of 
one  of  the  persons  set  off  can- 
not be  made  a  ground  of  ob- 
jection to  the  proceeding  by  an 
inhabitant  of  the  old  district,.  259 
See  Commissioner.^   of   Common 

Schools,  15. 
Fuel,  4. 
JVotice,  17. 
Property  of  School  Districts, 

1,  2,  '3,  4,  5,  9,  10,  11,  12, 

18.  14. 
Public  or  School  Moneys,  31. 
Schools,  1,  3,  10. 
School  Districts,  12. 
Site  for  School-House. 
Taxation  and  Taxes,  7,  8,  9, 

81,32,  33,  35,  38,  40,  41, 

42,57,61,65,  69,  72,  73, 

79. 
Trustees  of  School  Districts, 

10,  14,  15. 

SEAL. 
See  Warrant,  4. 

SEPARATE    NEIGHBORHOODS. 
Separate  neighborhoods  can  only 
be   set    off  to  form   districts 
with  the  inhabitants  of  adjoin- 
ing states, 294 

See  Children,  12. 

SERVANT. 
See  JVon-Residents,  1,  2,  4,  5,  7, 
8,  11. 

SITE  FOR  SCHOOL-HOUSE. 
1 .  Private  properly  cannot  be  ta- 
ken for  a  site  for  a  school- 
house  without  the  consent  of 
the  owner, 26 

5.  If  a  district  is  unaltered,  the  site 

of  the  school-house  cannot  be 
changed  by  a  vote  of  14  against 
8,  as  this  is  not  the  legal  ma- 
jority required, 105 

».  If  the  title  to  the  site  of  the 
school-house  fails,  a  new  one 
may  be  fixed  by  a  majority  of 
votes, 107 

4.  Sites  for  school- houses  should 
not  be  fixed  without  a  fair  ex- 
pression of  the  opinions  and 
wishes  of  the  inhabi^ants,  . . .   132 

3.  If  the  title  to  the  site  of  a  school- 
house  fails,  the  inhabitants 
may  select  another  precise.y 
as  though  the  district  had  ne- 
ver possessed  one, 132 

6.  A  school-house  being  abandon- 

ed, and  the  right  of  occupan- 


cy failing  with  it,  a  new  site 
may  be  chosen  by  a  majority 
of  votes, 142 

7.  When  the  site  of  a  school-house 

has  been  fixed,  it  may  be  chan- 
ged by  a  majority  of  votes  at 
any  time  before  the  school- 
house  is  built  or  purchased,. .  182 

8.  If  a  site  is  chosen  for  a  school- 

house  and  the  owner  refuses 
to  give  a  conveyance,  a  new 
one  may  be  chosen  by  a  ma- 
jority of  votes, 196 

9.  The  site  of  a  school-house,  if  ac- 

tually owned  by  the  district, 
is  a  part  of  its  property,  sub- 
ject to  appraisement  when  a 
new  district  is  formed, 20O 

10.  If  at  a  meeting  called  to  fix  the 
site  ofa  school -house  a  reason- 
able time  has  not  been  given 
for  all  the  inhabitants  to  assem- 
ble, a  new  meeting  will  be  or- 
dered,  219 

11.  If  the  inhabitan!s  agree  that  the 
commissioners  may  select  a 
site,  the  selection  ought  to  be 
acquiesced  in, 261 

12.  When  the  site  of  a  district 
school-house  is  chmged  pur- 
suant to  the  act  of  17th  Feb- 
ruary, 1831,  the  inhabitants 
have  power  to  direct  the  sale 

of  the  former  lot  and  site, . . .  311 

13.  Whenever  the  site  of  a  district 
school-house  is  legally  chang-  > 
ed,  otherwise  than  by  the  act 

of  17th  February,  1831,  the 
trustees  have  power  to  sell 
and  convey  the  former  lot  and 
site  without  a  vote  of  the  in- 
habitants of  the  district 311 

14.  If  the  inhabitants  of  a  school 
district  authorize  the  trustees 
to  select  a  site  for  a  school- 
house,  it  is  not  a  legal  site  un- 
til subsequently  fixed  by  a  vote 

of  the  inhabitants, 353 

See  Alterations    in   School  Dis- 
tricts, 5,  9.  . 

Commissioners  of  Common 
Schools,  1,4,  16. 

JVotice,  17. 

Property  of  School  Districts, 
12. 

Taxation  and  Taxes,  8,  31, 
32,  35,  .38,  40,  46,  74. 

Votes  and  Voters,  12. 

SI.VGING  SCHOOLS. 
See  Taxation  and  Taxes,  60. 

SLOOP. 
See  Vessels,  2. 


464 


INDEX   TO    DECISIONS. 


SPECIAL  MEETINGS. 
See  JVotice,  8,  12,  13. 

Vacancies  in  Office,  1. 

STORE. 
See  Taxation  and  Taxes,  12,  18. 

STUDIES. 
See  Inspectors  of  Common  Schools,  9. 
Teachers,  20. 

SUITS. 

1.  A  resident  cannot  be  prosecut- 

ed by  trustees  for  a  tax  or  for 
tuition  bills, 254 

2.  If  a  person  removes  from  a  dis- 

trict after  a  tax  list  is  made 
out,  he  may  be  prosecuted  for 
his  part  of  the  tax  if  he  does 

not  pay  voluntarily, 291 

See  Commissioners  of  Common 
Schools,  11. 
Penalties,  1. 
Rate  Bills,  3. 
Taxation  and  TVixes,  30. 
Ij^      Trustees  of  School  Districts, 
T  12, 31. 

SUMMER. 
See  Public  or  School  Moneys,  17. 

SUNDAY. 
See  Schools,  4,  5. 

SUNDAY  SCHOOLS. 
See  School-House,  11. 

SUPERINTENDENT. 

1.  The  daily  opinions  of  the  Super- 

intendent, given  in  reply  to 
abstract  questions  and  ex  parte 
representations,  are  not  to  be 
classed  among  those  decisions 
which  the  law  declares  to  be 
.final, 4 

2.  Superintendentcannot  interfere 

with  proceedings  before  justi- 
ces of  the  peace;  but  his  opi- 
nion will  be  given  with  a  view 
to  the  amicable  adjustment  of 
controversies, 15 

3.  The  Superintendent  will  not  in- 

terfere with  the  general  ar- 
rangement of  school  districts 
in  a  town,  excepting  in  special 
cases  where  cause  is  shown,.     35 

4.  The  decisions  of  the  Superin- 

tendent are  final, 44 

5.  If  a  school  district  is  established 

by  a  decision  of  the  Superin- 
tendent, it  cannot  be  dissolv- 
ed by  the  commissioners  of 
common  schools, 44 

6.  The  Superintendent  of  common 

schools  will  not  take  cogni- 
zance of  controversies  in  school 


districts,  in  respect  to' which 
the  parlies  have  commenced 
litigation  in  the  courts, 59 

7.  The  Superintendent  has  only 

an  appellate  jurisdiction  in  the 
formation  and  alteration  of 
school  districts, 184 

8.  The   Superintendent  will   not 

give  opinions  to  be  used  in 

court, 285 

See  Annual  Meeting,  3. 

Annual  Reports  of  Trustees,  6. 

Appeals,  1,  3,  4. 

Elections,  2. 

Errors  and  Omissions,  6. 

Public  or  School  Moneys,  11, 
27,  29,  31. 

Schools,  7. 

School  Districts,  3. 

Taxation  and  Taxes,  25,  66. 

Teachers,  23. 

Trustees  of  School  Districts, 
10. 

Void  Proceedings,  1. 

Votes  and  Voters,  8. 
SUPERVISORS. 
See  Assessmant  Roll  of  Toum,  6. 

SUPREME    COURT,   DECISIONS 
OF. 

1.  The  People  vs.  Collins,  7  John- 

son 549 Iff 

2.  Ring  vs.    Grout,    7    Wendell 

341 18,  44,  117 

3.  Dubois  vs.  Thome,  8  Wendell 

518, 27,  74 

4.  Robinson  vs.  Dodge,  18  John- 

son 351 28 

6.  Sanders  vs.  Springsteen,  4Wen- 

dell429, 96 

6.  Rowland  vs.  Luce,  16  Johnson 

135, 14S 

7.  Keeler  vs.  Chichester,  13  Wen- 

dell 629 144 

8.  Spafford  vs.  Hood,   6  Cowen 

478 165 

9.  Baker  vs.  Freeman,  9  Wendell 

36, 168 

10.  Easton  vs.  Calendar,  11  Wen- 
dell 90 227 

11.  Wilcox  vs.  Smith,  5  Wendell 
231 281 

12.  Silver  vs.  Cummings,  7  Wen- 
dell 181, 191,  282,  314,  333 

13.  McCoy  vs.  Curtice,  9  Wen- 
dell 17 258,  328 

14.  Reynolds  vs.  Moore,  9  Wen- 
dell 35, 260 

15.  Alexander  vs.  Hoyt,  7  Wen- 
dell 89 281 

16.  Suydam  and  Wyckoffvs.  Keyi, 

13  Johnson  444, 282 


INDEX   TO   DECISIONS. 


465 


17.  Sacavool  vs.  Boughton,  5  Wen- 

dell 170, 

18.  Brewster  vs.  Colwell,  13  Wen- 

dell 28 

19.  Hubbard  vs.  Randall,  ICowen 
262, 

20.  Ward  vs.  Ayles worth,  9  Wen- 
dell 281,  

TAXATION  AND  TAXES. 

1.  Land  purchased  after  a   tax  is 

voted,  but  before  the  tax  list 
is  made  out,  must  be  assessed 
to  the  purchaser  if  he  resides 
in  the  district, 

2.  Persons  leasing  specific  portions 

of  a  lot  are  to  be  taxed  for  so 

much  as  they  lease, 

S.  Rule  of  taxation  applied  to  a 
particular  case, 

4.  A  tax  maybe  levied  in  a  school 

district  to  build  a  wood-house 
and  necessary, 

5.  If  a  farm  lies  partly  in  two  school 

districts,  it  is  to  be  taxed  in 
the  district  in  which  the  occu- 
pant resides, 

6.  Taxes  can  only  be  voted  by  the 

inhabitants  of  school  districts 
for  the  objects  enumerated  by 
law, 

7.  If  the  trustees  of  a  school  dis- 

trict expend  money  for  re- 
pairing the  school- house  with- 
out being  authorized  by  the 
inhabitants,  a  tax  to  cover  the 
expenditure  may  be  collected, 
if  voted  at  a  subsequent  time, 

8.  A  tax  voted  to  repair  a  school- 

house  should  not  be  collected, 
if  the  district  has  no  title  to 
the  site,  and  the  owner  has  for- 
bidden the  repairs  to  be  made, 

9.  A  person  set  off  without  his  con- 

sent from  a  school  district, 
csmnot  be  taxed  for  a  school 
house,  it  within  four  years  he 
has  paid  a  tax  for  that  purpose 
in  the  district  from  which  he 

was  thus  set  off, 

19.  Persons  about  to  remove  from 
a  district  must  be  included  in 
a  tax  list,  if  they  are  actually 
inhabitants  of  the  district  when 
tlie  list  is  made  out, 

11.  A  tax  being  voted  to  build  a 
school-house,  the  tax  list  made 
out  and  a  warrant  issued,  the 
collection  of  the  tax  can  not 
be  suspended  by  vote  of  a 
district  meeting, 

12.  A  store  and  lot  must  be  taxed 
in  the  district  in  which  they  are 


282 

333 

13 

333 

338 

14. 

15. 

8 

16. 

16 

17. 

17 

18. 

21 

19. 

20. 

24 

21. 

27 


41 


60 


64 


66 


68 


22. 


23. 


24. 


25. 


30 


situated;  but  goods  in  a  store 
are  to  be  taxed  in  the  district 
in  which  the  owner  resides,  71 
.  No  real  estate,  except  such  as 
lies  in  a  school  district,  can  be 
taxed  in  it  for  common  school 

purposes, 73 

.  Bridge  companies  are  taxable 
in  the  school  districts  where 

the  tolls  are  collected, 74 

.  A  tax  can  not  be  laid  on  the 
property  of  a  district  to  pay 

school  bills, 77 

A.  B.  having  two  farms  sepa- 
rated by  a  district  line,  is  tax- 
able in  each  district, 81 

The  vendor  of  a  farm,  remain- 
ing in  possession,  is  liable  for 

taxes  assessed  on  it, 88 

Real  estate  is  taxable  where  it 
hes,    and    personal    property 
where  the  owner  resides, ....     86 
Rule  of  taxation  applied  to  a 

particular  ease, 89 

Taxes  for  fuel  or  repairs  may 
be  voted  at  annual  meetings,    91 
Separate  tenancies  are  excep- 
tions to  the   general   rule  of 
taxation  with  respect  to  farms 
lying  partly  in  two  districts,  .   102 
Trustees  are  bound  to  know 
the  condition  of  the  taxable 
property  of  their  districts,  so 
that  in  assessing  taxes  no  per- 
son shall  be  improperly  taxed,  108 
A  tax  to  pay   the   rent  of  a 
school  room  cannot  be  assess-        **■ 
ed  on  those  who  send  children 

to  school, 114 

Taxes  ought  to  be  assessed 
within  the  time  prescribed  by 
law;  butquere?  whether  trus- 
tees may  not  assess  them  after 
the  expiration  of  the  time.'  ..  117 
If  the  inhabitants  of  a  district 
direct  a  tax  to  be  collected  in 
a  mode  not  recognized  by  law, 
and  the  trustees  execute  such 
direction,  the  Superintendent 

will  not  interfere, 117 

The  toll-house  and  lot  of  a 
bridge  company  are  not  taxa- 
ble as  real  estate, 132 

Rule  of  taxation  in  relation  to 
real  e.state  purchased  after  the 
formation  of  a  school  district, 

applied  to  certain  cases, 140 

A   distinct   possession  carries 
with  it  a  liability  to  taxation,.   142 
Two  taxes  voted  at  the  same 
time  may  be  included  in  the 
same  tax  list, 158 


466 


INDEX    TO    DECISIONS. 


30.  A  tax  cannot  he  voted  to  pay 
costd  of  suit  recovered  against 
the  tru:jtees  of  a  school  dis- 
trict,    166 

31.  A  tax  to  huild  a  school-hou.oe 
may  be  raised,  but  should  not 
be  expended,  before  the  dis- 
trict has  acquired  such  an  in- 
terest in  the  site  as  to  be  able 

to  control  the  house, 168 

32.  A  tax  cannot  be  raised  to  build 
a  school-house  on  a  site  select- 
ed without  legal  authority, 
(see  note,) 163 

33.  When  an  old  school-house  is 
sold  and  a  new  one  built,  a 
district  cannot  raise  by  tax 
$400  in  addition  to  the  avails 

of  the  sale  of  the  old  house,, .  183 

34.  Trustees  cannot  reassess  a  tax 
to  make  up  a  deficiency  on 
account  of  the  inability  of  an 
individual  to  pay  his  portion; 
nor  can  they  make  out  a  new 
rate  bill  in  such  a  case, 185 

86.  A  tax  to  build  a  school-house 
cannot  be  expended  until  a 
site  is  chosen  and  a  title  to  it 
obtained, 187 

86.  Promissory  notes  should  not  be 

taken  for  faxes, 187 

37.  Taxes  must  be  collected  in  the 

mode  prescribed  by  law,  ....   192 

88.  The  ownership  of  the  soil  car- 

ries with  it  a  right  of  property 
in  permanent  erections  on  it: 
but  if  a  school-house  is  built 
by  subscription,  on  a  site  pur- 
chased by  a  district,  a  tax  may 
be  voted  to  purchase  the 
house, 193 

89.  A  tax  may  be  voted  for  tvo 
authorized  objects  without 
specifying  the  amount  to  be 
raised  for  each, 195 

40.  A  tax  may  be  voted  to  repair 
a  sciiool-house,  though  the  dis- 
trict has  no  title  to  the  site,. .  195 

41.  Persons  annexed  to  a  new  dis- 
trict with  their  consent,  may 
be  taxed  for  a  school  house, 
though  they  may  have  paid  a 
tax  for  the  jHirpose  within  four 
years, 196 

42.  If  a  school  district  is  broken 
up,  the  persons  belonging  to 
it  are  liaMe  to  be  taxerl  for  a 
Bchool-house  in  the  districts 
to  which  they  are  annexed, 
though  they  may  have  paid  a 
tax  for  the  same  purpose  with- 
in four  years, 203 


43.  A  fax  must  be  for  a  specific 
obj.-cf, 218 

44.  Trustees  cannot  levy  a  lax 
without  a  vote  ol  Ihe'district,  222 

45.  A  tax  cannot  l>o  voted  to  buy 
a  record  hook  for  a  school  dis- 
trict, (but  see  note  ) 288 

46.  ]ii  voting  a  tax  to  purchase  a 
site,  a  sufficient  sum  may  be 
included  fo  p.iy  for  reconling 

the  deed 229 

47.  Trustees,  guardians,  executors 
and  administrdfors  are  taxa- 
ble in  their  representative 
character  where  they  reside 
for  personal  property  in  their 
possession,  whether  the  real 
partii-s  in  interest  are  benefit- 
ed by  the  expenditure  of  the 

tax  or  not, 230 

48.  Money  cannot  be  raised  by  fax 
in  a  school  district  for  contin- 
gent uses, 233 

49.  Taxes  must  be  paid  in  money,  245 

50.  A  district  may  repeal  a  vote 
to  raise  a  fax  if  no  proceedings 
have  been  commenced  in  pur- 
suance of  such  vote, 261 

51.  Persons  worth  fifty  dollars  may 
vote  and  must  be  taxed, 
though  they  may  have  been 
omitted  in  the  town  assess- 
ment,   262 

52.  It  may  happen  that  persons  not 
lia!)le  to  be  taxed  in  a  school 
district,  are  entitled  fo  vote  to 
raise  taxps  on  the  district,. ..  262 

53.  Errors  in  assessing  faxes  may 

be  corrected  after  one  month,  275 

54.  A  tax  cannot  he  voted  for 
globes  and  school  apparatus,  .  280 

55.  Taxes  should  be  promptly  col- 
lected  282 

56.  If  a  tax  is  voted  in  express 
terms,  and  a  direction  subse- 
quently given  as  to  the  time 
and  manner  of  collecting  it, 

the  direction  rs  void, 282 

57.  The  provision  exempting  from 
taxation  for  building  a  school- 
house  persons  who  have  with- 
in four  years  paid  a  tax  for  the 
purpose  in  another  district, 
from  which  they  have  been  set 
off  without  their  consent, does 
not  extend  to  taxes  vote<l  to 
lurnish  a  school-house  with 
necessary  appendage.s, 284 

58.  If  a  taxable  inha'iitant  sells  his 
farm  and  remains  in  the  dis- 
trict, he  is  liable  to  be  faxed 
on  th|>^inpuQt  of  i^te  purchase 


INDEX   TO    DECISIONS. 


467 


money  paid  or  seen  rod  to  he 
paid  ad  pt-rsonal  p  operty,  and 
the  purchaser  is  taxable  for 
the  fartfi  according  t(i  its  asses- 
sed value  on  ihe  last  assess- 
ment nA\  of  the  town 285 

59.  A  tax  (o  purchase  a  school  dis- 
trict Iihrar\  cannot  he  voted  at 
a  meeting  of  which  no  notice 

is  rf quired  hy  law  to  l)e  given,  286 

60.  The  inh;ibitants  of  school  dis- 
tricts cannot  vote  a  tax  to  pro- 
vide tuel  for  singing  schools,.  289 

61.  A  tax  cannot  be  laid  to  erect  a 
building  to  he  occupied  joint- 
ly as  a  school-house  and  a 
meeting-house, 290 

62.  Taxable  inhabitants  only  can 

be  included  in  tax  lists, 291 

6S.  If  a  person  moves  into  a  dis- 
trict after  a  tax  list  is  made 
out,  he  cannot  be  included  in 
it 291 

(64.  When  trustees  of  districts  find 
it  necessary  in  assessing  a  tax 
to  proceed  in  the  same  manner 
as  assessors  of  towns,  they  are 
allowed  twenty  days  in  addi- 
tion to  the  month  within  which 
the  tax  list  is  required  by  law 
to  be  made  out, 303 

•66.  If,  through  the  neglect  of  trus- 
tees, a  tax  to  build  a  school- 
house  IS  not  collected  within 
a  reasonable  time,  and  before 
the  colle'-.tion  is  made,  a  new 
district  is  formed  and  an  inha- 
bitant set  off  to  it,  the  Super- 
intendent will  remit  so  much 
of  the  tax  to  bnild  a  school- 
house  in  fie  district  from  which 
such  inhabitant  uas  ta'sen  as 
was  assessed  to  hicn, 308 

<S6.  If  a  tax  is  raised  in  a  school  dis- 
trict for  any  object,  and  the 
whole  amount  is  not  required, 
the  balance  may  be  applied  by 
vote  o\'  the  district  to  any  oth- 
er authorized  object, 315 

(fffj.  In  assessing  taxes  in  joint  school 
districts,  the  last  assessment 
roll  in  each  town  must  be  Jol- 
lowed  with  respect  to  the  tax- 
able property  within  it,  al- 
though the  assessors  of  the 
two  towns  may  have  different 
standards  of  valuation, SIS 

68.  A  tax  cannot  be  voted  for  ar- 
rearages, or  to  reimburse  trus- 
tees for  moneys  expended  by 
them,  unless  it  appears  hy  the 
vote  that  the  money  is  to  be 


applied  to  one  of  the  objects 
for  «  hich  taxes  may  by  law  be 
voted, 316 

69.  If  a  special  meeting  is  called 
for  the  purpose  of  layinga  tax 
to  build  a  school-house,  the  no- 
tice is  sufficient  to  justify  the 
inhabitants  in  voting  a  tax  to 
purchase  a  house  already  con- 
structed  317 

70.  In  assessing  a  tax  for  school  dis- 
trict purposes,  personal  notice 
to  the  persons  interested  need 
not  be  given  where  a  reduction 
is  claimed,  or  where  the  va- 
luations of  property  cannot  be 
ascertained  from  the  last  as- 
sessment roll  of  the  town,  . .  319 

71.  All  the  trustees  of  a  district 
should  be  present  in  assessing 
a  tax;  but  if  a  tax  is  assessed 
by  two,  without  consulting  the 
third,  the  collector  will  be  pro- 
tected in  executing  the  war- 
rant,   327 

72.  If  the  commissioners  of  com- 
mon schools  certify  that  a  lar- 
ger sum  than  $400  is  neces- 
sary to  build  a  school-house, 
the  exccs-i  cannot  be  raised  by 
tax  without  a  vote  of  the  dis- 
trict,   339 

73.  If,  after  $400  has  been  expend- 
ed in  erec  inga  school-house, 
and  an  additional  sum  has  been 
raised  on  the  certificate  of  the 
commissioners,  a  further  sum 
is  required,  such  further  sum 
may  be  voted,  if  certified  by 
the  commissioners  to  be  ne- 
ces-?ary, 339 

74.  If  a  man  has  been  assessed  on 
the  last  assessment  roll  of  the 
town  foi  a  greater  n«mber  of 
acres  than  his  farm  contains, 
he  may  claim  a  reduction  be- 
fore the  trustees  of  a  school 
district  when  a  tax  is  assessed 
for  common  school  purposes; 
but  if  he  neglects  to  make  such 
claim,  he  will  not  be  relieved 
on  an  appeal  to  the  Superin- 
tendent,    341 

75.  Trustees  must  include  in  a  tax 
list  every  taxable  inhabitant 
residing  in  the  district  at  the 
time  the  list  is  ma'^e  out,. . . .  341 

7€.  Trustees  cannot  assess  an  in- 
dividual for  personal  property, 
if  he  has  been  taxed  for  none 
on  the  last  assessment  roll  of 
the  town,  upon  the  suj)posi- 


468 


INDEX    TO    DECISIONS. 


tion  that  he  may  ha(ve   more 
than  hi»  debts  amount  to,....   341 

77.  If  before  a  tax  is  assessed  the 
trustees  ascertain  that  the 
whole  amount  Toted  will  not 
be  required,  they  may  make 
out  a  tax  list  for  a  smaller  sum ,  342 

78.  Rail-road  companies  are  taxa- 
ble oB  their  rail-ways,  and  oth- 
er fixtures  connected  there- 
with, as  real  estate,  in  the 
school  districts  within  which 
such  real  estate  is  situated,. .  350 

79.  If  a  special  meeting  is  called 
under  a  notice  to  take  info 
consideration  the  propriety  of 
building  a  new  school-house, 
and,  if  thought  proper,  to  lay 
a  tax  for  the  purpose,  it  is  a 
sufficient  no'iceto warrant  the 
inhabitants  at  such  meeting 
to  vote  a  tax  to  repair  the  old 
school-house, 351 

80.  If  an  inhabitant  removes  from 
a  district  befi  re  the  end  of  one 
month  after  a  tax  is  voted,  and 
before  the  tax  list  is  delivered 
to  the  collector,  he  cannot  be 
included  in  it,  the  tax  list  not 
being  complete  until  the  end 
of  the  month,  if  it  remains  in 

the  hands  of  the  trustees,. . .  357 
Sec  Appendages  to  Schoot-Hoitse, 

1,  2. 
Assessment  of  Taxes. 
Assessment  Roll  of  Toum,  1, 

2,  5, 6,  7. 
Bank,  1. 

Collector,.  5,  6,  11,13. 
Exeeutars. 

Fuel,  2,  3. 

Ministers  of  the  Gospel,  1 , 2, 

3,4,5. 
JVon-Residents. 
JVbtice,  4,  5. 
Property  of  School  Districts, 

1,  10. 
Rate  Bill,  4. 
School-House,  1,  2,  7,  8, 10, 

16. 
Suits,  1,  2. 
Tax  List. 
Teachers,  7,  27. 
Tenants. 
Trustees  of  School  Districts, 

2,  10,24,36. 
Vessels. 

Votes  and  Voters,  II. 
Wcurant,  6. 
TAXABLE  INHABITANTS. 
See  Children,  7. 
Residence,,  3. 


See  Site  for  School-House,  12,  IS. 
Taxation  and  Taxes. 
Tax  List,  1,2,  3. 
Trustees  of  School  Districts,  18. 

TAX  LIST. 

1.  In  making  out  a  tax  tist  the 

names  of  the  taxable  inhabi- 
tants must  be  given.    *'  The 
widow  and  heirs  of  A.  B.  de- 
ceased" is  not  a  sufficient  de-    . 
signation  of  the  persons  to  be     v. 
taxed 4^ 

2.  Tax  lists  must  include  all  taxa- 

ble inhabitants;  but  rate  bills 
include  such  only  as  have  sent 
children  to  school, 87 

3.  A  tax  list  must  inclutle  all  the 

taxable  inhabitants  of  the  dis- 
trict at  the  time  when  it  is 
made  out,  though  some  of  them 
may  have  become  so  after  the 
tax  is  voted, 109 

4.  Persons  removing  from  a  dis- 

trict after  a  tax  list  is  made 
out  are  liable  for  their  portion 

of  the  tax, 2ra 

See  Assessment  Roll  of  Toum,  2, 

3,5,6,7. 
Collector,  5. 

Errors  and  Omissions,  1. 
Suits,  2. 
Taxation  and  Taxes,  1,  10, 

11,29,62,63,  75,77,80. 
Trustees  of  School  Districts, 

18,  29. 
Warrant,  5> 

TEACHERS. 

1.  Teachers  are  not  allowed  fees 

on  sums  vohmtarily  paid  to 
them  for  tuition, 31 

2.  Trustees  of  school  districts  can- 

not transfer  to  a  teacher  the 
power  of  enforcing  the  collec- 
tion of  his  wages, 31 

3.  If  an    inspector    of    common 

schools  is  employed  as  a  teach- 
er, he  most  be  examined  like 
all  other  teachers, 38 

4.  An  intemperate  man  ought  not 

to  be  employed  as  a  teacher  of 
common  schools 3^ 

5.  Tw5  teachers  may  be  employed 

in  a  school  district,  if  it  is  ne- 
cessary ;  but  a  high  school 
ought  not  to-  be  set  up  by  the 
trustees  withofrt  the  concur- 
rence of  the  inhabitants,    ...     52 

6.  A  teacher  should  not  be  ques- 

tioned by  the  inspectors  as  to 
his  religious  opinions:  but  ft 
person  who  openly  derides  aU 


INDEX    TO    DECISIONS. 


469 


religion  should  not  be  employ- 
ed as  a  teacher, 59 

7.  If  a  teacher  cannot  procure  a 

certificate  of  qualification  from 
the  inspectors,  his  wages  may 
be  collected  of  those  who  send 
children  to  school,  and  fuel 
may  be  provided  by  tax,  if  a 
tax  is  voted  for  the  purpose,.     61 

8.  Trustees  should  see,  when  they 

employ  a  teacher,  that  he  has 

a  certificate  of  qualification, .     76 

9.  If  a  teacher  does  not  pass  an  ex- 

amination before  the  inspec- 
tors, his  wages  must  be  collec- 
ted by  a  warrant  against  those 
who  have  sent  their  children 
to  school, 76 

10.  A  teacher,  who  at  the  com- 
mencement of  a  term  of  in- 
struction, holds  a  certificate 
dated  within  a  year,  is  a  qua- 
lified teacher  to  the  end  of  the 
term, 92 

11.  Teachers  cannot  demand  pay- 
ment of  their  wages  until  the 
collector  has  had  30  days  to 
collect  them, 101 

12.  The  inspection  of  a  teacher  af- 
ter the  close  of  a  term,  with  a 
view  to  enable  him  to  receive 
the  public  money,  is  inadmis- 
sible, excepting  under  extra- 
ordinary circumstances, .....   120 

13.  Teacher  may  dismiss  his  school 

on  Saturday  afternoon, 121 

14.  A  teacher  may  employ  neces- 
sary means  of  correction  to 
maintain  order;  but  he  should 
not  dismiss  a  scholar  from 
school  without  consultation 
with  the  trustees, 145 

15.  The  wages  of  two  teachers  em- 
ployed for  different  terms  can- 
not be  included  in  the  same 
rate  bill, 168 

16.  If  a  teacher  is  examined  and 
the  inspectors  are  satisfied, 
but  neglect  to  give  a  certifi- 
cate at  the  time,  it  may  be  gi- 
ven at  a  subsequent  time  and 
take  effect  from  the  date  of 
the  examination, 200 

17.  If  a  teacher  is  engaged  at  a 
given  sum  per  month,  and  the 
public  money  is  paid  to  him,  it 
is  to  be  in  part  payment  of  his 
wages, 205 

18.  There  is  but  one  legal  mode  of 
paying  teachers, 205 

19.  Teacher's  board  bills  cannot  be 


included  in  a  rate  bill,  or  paid 
out  of  the  public  money,. . . .  206 

20.  If  two  teachers  are  employed 
at  the  same  time,  the  rate  bill 
for  their  wages  must  be  gra- 
duated by  the  number  of  days 
of  attendance,  without  refer- 
ence to  the  studies  or  branch- 
es in  which  different  children 
may  have  been  instructed, . .  207 

21.  If  a  teacher's  certificate  is  an- 
nulled, the  trustees  may  dis- 
miss him 211 

22.  The  wages  of  a  teacher  not 
qualified  according  to  law  may 
be  collected  by  a  rate  bill,  but 
he  cannot  receive  the  public 
money, 213 

23.  If  inspectors  examine  a  teach- 
er, and  refuse  to  give  him  a 
certificate  of  qualification,  the 
Superintendent  will  not  inter- 
fere without  very  strong  rea- 
sons,  215 

24.  Modeof  paying  the  public  mo- 
ney to  a  teacher  in  a  special 
case  explained, 232 

25.  Trustees    cannot    transfer    to 

teachers  the  authority  of  pro- 
secuting individuals  for  tuition 
bills.  But  trustees  must  col- 
lect their  dues  by  a  rate  bill, 
notwithstanding  an  agreement 
on  the  part  of  the  teacher  to 
collect  them  himself, 288 

26.  The  inhabitants  of  school  dis- 
tricts should  sustain  the  trus- 
tees in  employing  competent 
teachers,  and  in  their  efforts 
to  advance  the  standard  of  edu- 
cation,  301 

27.  The  expense  of  conveying  a 
teacher  home  cannot  be  paid 
by  tax,  or  included  in  a  rate 
bill, 313 

See  Certificate  of  qualification. 
Children,  13. 
Collector,  2. 
Colored  Persons,  1. 
Corporal  Punishment,  1 . 
Inspectors  of  Common  Schools. 
Public  or  School  Moneys,  2, 

8,  9,  14,  27,  28,  29,  30,  31. 
Punishment. 
Rate  Bills. 
Schools,  1,  4,  5. 
School  Districts,  17. 
Town  Funds  arid  Lands,  2. 
Trustees  of  School  Districts, 

3,  4,  11,  13,  16,  27,  33,  35. 


470 


INDEX    TO    DECISIONS. 


TENANTS. 

A  tenant  is  taxable,  whether  a 
householder  or  not,  lor  land 
occupied  and  improved  by 
him 155 

See  Ministers  of  the  Gospel,  2, 4. 
.Yon-Residents,  2,  5,  6,  9. 
Taxation  and  Taxes,  2,  3,  21. 

TITLE  TO  SITE. 
See  Site  for  School- House,  3, 5, 6, 8. 
Taxation  and  Taxes,  8. 

TOLLS. 
See  Taxation  and  Taxes,  14,  26. 

TOLL-HOUSE  AND  LOT. 
See  Taxation  and  Taxes,  26. 

TOWN  AGENT. 
See  Town  Funds  and  Lands,  5. 

TOWN  CLERK. 
See  Assessment  Roll  of  Town,  1. 
JVbtice,  7. 

Trustees  of  School  Districts, 
22. 

TOWNS,  DIVISION  OF. 

1.  If  a  town  is  divided,  and  a  new 

town  erected,  the  latter  is  en- 
titled to  an  equitable  share  of 
the  school  moneys  apportion- 
ed to  the  former,  unless  the 
law  shall  have  otherwise  pro- 
vided in  the  particular  case,. .     55 

2.  When  a  town  is  divided  and  a 

new  one  formed,  or  when  two 
existing  towns  are  altered,  the 
public  moneys  are  apportion- 
ed between  them  according  to 
the  number  of  children  be- 
tween 5  an  1  16  yeai-s  of  age,.   171 

3.  When  a  town  is  divided  and  a 

new  one  formed,  after  the  as- 
sessment of  taxes  I  as  been 
made  in  the  former,  the  school 
moneys  levied  on  such  town 
should,  when  co'lected,  be  di- 
vided in  the  same  proportion 
as  the  moneys  derived  from 
the  common  school  fund,. . . .  352 
See  Organization  of  School  Dis- 
tricts, 1 

TOWN  FUNDS  AND  LANDS. 

1-  The  proceeds  of  lands  set  apart 
for  the  suppoit  of  the  common 
schools  in  a  particular  town, 
must  be  applied  exclusively 
for  the  benefit  of  the  inhabi- 
tants of  the  town  to  which  the 
lands  belong, 21 

2.  Theproceedsof  the  school  fund 
of  the  town  of  Fabiur»,  must 
be  applied  by  the  trustees  of 


the  fund  as  the  inhabitants 
may  direct.  But  trustees  of 
school  districts  must  apply 
such  proceeds  to 'he  pay:iient 
of  qualified  teachers, 2^ 

3.  The  school  fund  of  Edmeston 

must  be  applied  exclusively 
for  the  benefit  of  the  com»non 
schools  of  the  town 134 

4.  The  fuiuls  arising  from  the  gos- 

pel and  school  lots  I.elonging  to 
the  twenty  townships  on  the 
Unadilla  river,  are  to  be  appli- 
ed exclusively  to  the  benefit 
of  the  inhaliitants  of  such 
townships, 22& 

5.  None   but    inhabitants    of  the 

township  ran  participate  in 
the  election  of  a  (own  agent, 
or  in  directing  the  application 
to  be  made  of  the  funds  aris- 
ing from  the  gospel  and  school 
lots 22» 

6.  Permanent  town  funds  must  be 

applied  exclusively  for  the  be- 
nefit of  the  common  schools 
in  the  town, 300 

TREASURERS  OF  COUNTIES. 
See  Public  or  School  Moneys,  26. 

TRESPASS. 
See  Trustees  of  School  Districtty 
14. 

TRUSTEES. 
See  Taxation  and  Taxes,  47. 
TRUSTEES  OF  SCHOOL  DIS- 
TRICTS. 

1.  Trusteesof  school  districts  must 

render  an  account  of  their  re- 
ceipts and  expenditures,  at 
the  expiiation  of  their  office; 
it  is  their  duty  also  to  give 
such  reasonable  explanations 
as  may  be  required, 3S 

2.  Trustees  are  not  authorized  to 

receive  moneys  for  taxes,  or 
on  rate  bills ;  but  payments 
may  be  made  to  teachers  for 
their  wages,  and  on  sums  so 
piid,  the  collector  loses  his 
fees, M 

3.  Trustees  have    the    exclusive 

right  of  employing  teachers,.     62 

4.  In  employing  teachers,  trustees 

should  so  far  consult  the  feel- 
ings and  wishes  of  the  inhabi- 
tants as  not  to  give  offence  to 
a  large  portion  of  them, 72 

5.  Trustees  of  school  districts  are 

not  required  to  take  and  sub- 
8cril)e  (he  oath  prescribed  in 
the  constitution, .... , 91^ 


INDEX    TO    DECISIONS. 


4^1 


6.  If  trustees  hire  a  room  without 

being  authori/.eil  l^y  a  vote  of 
the  district,  they  are  person- 
ally responsibl,^  tor  ihe  rent,.    114 

7.  Trustees  cannot  be  compelled 

to  pay  interest  on  school  mo- 
ney in  their  hands,  nor  can 
the  inhal)itant*  cause  it  to  he 
taken  out  of  their  hands  and 

loaned  at  interest, 127 

8-  Trustees  may  give  notice  of  a 
meeting  when  the  clerk  refu- 
ses to  do  so, 141 

9.  A   trustee  of  a  school  district 

cannot  be  clerk  or  collector,.   142 

10.  If  trustees  are  directed  by  a 
vote  of  the  district  to  make 
such  repairs  as  they  may  think 
proper  on  the  school-house, 
and  the  district  afterwards  re- 
fuses to  lay  a  tax  for  the  pur- 
pose, the  Su|»'t  will  order  an 
amount  sufficient  to  cover  the 
reasonable  expenditures  of  the 
trustees  to  be  raised, 161 

11.  If  trustees  contract  to  pay  a 
teacher  a  specilic  sum  per 
month  or  per  scholar,  the 
mode  of  providing  (or  the  pay- 
men!  of  his  wages  must  be  the 
same  in  either  case, 165 

12.  Trustees  cannot  sue  an  associ- 

ate trustee  for  neglecting  to 
discharge  the  duties  of  his  of- 
fice,     182 

131.  Trustees  are  unwarrantable 
under  the  general  authority  to 
employ  ail  teachers,  if  they 
refuse  to  employany,  and  thus 
deprive  the  district  of  its  pub- 
lic money, 187 

14.  Trustees  may  sue  for  trespass 
in  case  the  district  school- 
house  is  forcibly  entered  with- 
out their  consent, 188 

15.  One  trustee  cannot  open  a 
school  in  ptirsuance  of  a  vote 
of  the  district,  nor  can  the 
other  two  trustees  open  a 
school  until  the  inhabitants 
have  designated  the  place,  if 
there  is  no  school  house  in  the 
district 190 

16.  Contracts  by  trustees  of  school 
districts  for  teachers'  wages 
are  bindingon  their  successors 

in  office, 191 

17.  Trustees  being  authorized  by 
a  vote  of  the  district  to  do  any 
act  involving  an  expenditure 
of  money,  must  be  indemnifi- 
ed by  the  district, 222 


18.  Trustees,  in  making  out  a  fax 
list,  are  bound  lo  know  who 
are  and  who  are  not  taxable 
inhabitants  of  the  district,  . . .  226 

19.  If  a  trustee  refuses  to  serve, 
the  district  may  elect  another 
person  to  the  office, 239 

20.  Trustees  are  answerable  only 
for  such  moneys  as  come  into 
their  hands, 247 

21.  Tiustees  are  sole  juilges  of 
the  ability  of  a  person  to  pay 

his  school  bills, 254 

22.  Trustees  are  bound  to  send 
or  deliver  their  annual  reports 

to  the  town  clerk, 266 

23.  I*'  one  of  the  trustees  refuses 
to  unite  in  making  out  a  rate 
bill,  the  other  two  may  act 
without  his  concurrence 258 

24.  If  a  warrant  for  the  collection 
of  a  tax  is  signed  by  two  trus- 
tees only,  the  presence  of  the 
third  at  the  issuing  of  the  war- 
rant will  be  presumed, 268 

25.  Trustees  must  settle  all  ac- 
counts arising  out  of  contracts 
executed  before  the  expira- 
tion of  their  term  of  offic  •,. . .  278 

26.  Trustees  in  office  must  sign  a 
warrant,  in  order  to  give  it  va- 
lidity,     273 

27.  Contracts  by  trustees  with  a 
teacher  for  his  wages  are  bir  d- 
ing  on  their  successors  in  of- 
fice  ,. 282 

28.  Trustees  should  call  a  special 
meeting  when  requested  by  a 
respectable  number  of  the  in- 
habitants  283 

29.  If  trustees  neglect  to  raise  and 
pay  over  the  amount  appor- 
tioned lo  a  new  district,  their 
successors  in  office  must  make 
out  a  fax  list  and  collect  the 
amount  so  apportioned,  ...    .  284 

30.  If  the  term  of  service  of  the 
trustees  and  collector  has  ex- 
pired, and  a  warrant  (or  the 
collection  of  a  school  bill  has 
run  out  in  the  hand*  of  the 
latter,  the  successors  of  such 
trustees  must  renew  the  war- 
rant and  direct  it  to  the  suc- 
ces.sor  of  such  collector,  ....  307 

31.  If  trustees  refuse  to  orosecute 
their  predecessors  for  an  un- 
paid balance,  there  is  no  mode 

of  compelling  them  to  do  so..  313 

32.  Trustees  of  school  districts 
must  see  to  the  execution  of 
all  contracts  entered  into  by 


472 


INDEX    TO   DECISIONS. 


them;  but  this  rule  will  not 
be  allowed  to  interfere  with 
the  legal  rights  of  third  per- 
sons,    313 

33.  Trustees  are  not  the  judges  of 
the  qualifications  required  for 
teachers  in  their  school  dis- 
tricts,   326 

34.  Trustees  of  school  districts 
have  certain  corporate  powers 
conferred  on  them  by  the  sta- 
tute; but  their  jurisdiction  is 
special  and  limited,  and  in  the 
exercise  of  their  powers  they 
must  confine  themselves  strict- 
ly to  the  directions  of  the  sta- 
tute,    328 

35.  Trustees  cannot  purchase  pro- 
missory notes  given  by  a  teach- 
er to  third  persons  and  set 
them  off  in  payment  of  his 
wages, 328 

36.  If  a  tax  is  voted  for  a  particu- 
lar object,  and  the  trustees  ex- 
pend a  greater  amount,  they 
are  without  remedy  if  the  in- 
habitants refuse  to  vote  an  ad- 
ditional sum  to  reimburse 
them, 333 

37.  A  commissioner  of  common 
schools  may  be  a  trustee  of  a 
school  district, 353 

38.  The  inhabitants  of  a  school  dis- 
trict cannot  authorize  the  trus- 
tees to  borrow  money, 353 

See  Alterations  in  School  I>istricts, 

1,2,  7,8,  10,  11. 
Annual  Meetings. 
Annual  Reports  of  Trustees. 
Assessment  of  Taxes,  1. 
Assessment  Roll  of  Toum,  5. 
Children. 
Collector  of  School  Districts, 

1,2,8,  9,  10,  12. 
Errors  and  Omissions,  1. 
Fuel,  6. 

Indigent  Persons,  3. 
Joint  Districts,  3. 
JVotice,  3,4,  5,  15,  19. 
Poor-Houses. 
Public  or  School  Moneys,  6, 

12,  20,  28,  29. 
Rate  Bills,  2,  3,  4,  6. 
Records,  2. 
Schools,  1. 
School  Districts,  6. 
School-House,  9,  14, 
Site  of  School-House,  18,  14. 
Suits,  1. 
Taxation  and  Taxes,  7,  22,  24, 

25,  30, 34,  44,  64, 65,  68,  71, 

74,75,76,77,80. 


See  Teachers,  2,  5, 8, 13, 14, 21,  25, 
26. 
Jhtition. 
Vacancies,  I. 
Warrant,  1,  2,  4,  6. 
TUITION. 
If  a  parent  is  not  wholly  exempted 
by  the  trustees,  he  must  be 
charged  the  full  price  of  tui- 
tion,      47 

See  Children,  5. 
Collector,  2. 
Suits,  1. 

Taxation  and  Taxes,  15. 
UNADILLA  TWENTY  TOWN- 
SHIPS. 
See  Toum  Funds  and  Lands,  4. 
UNIMPROVED  LOTS. 
See  JVon- Residents,  5. 

VACANCIES  IN  OFFICE. 

1.  Accidental  vacancies  in  district 

oflSces  may  be  filled  at  special 
meetings  called  by  the  trus- 
tees,      49 

2.  When  the  offices  in  a  school 

district  are  all  vacant,  the  com- 
missioners of  common  schools 
may  call  a  meeting  to  fill  them,  112 

3.  Vacancies    in    district    offices, 

when  the  district  lies  in  more 
than  one  town,  must  be  filled 
by  the  commissioners  of  both 
towns, 147 

4.  Commissioners  should  not  fill  a 

vacancy  in  an  office  in  a  school 
district,  unless  the  district  ne- 
glects to  fill  it  for  one  month 
after  knowing  that  it  has  oc- 
curred,     147 

5.  If  a  district  fills  a  vacancy  in  the 

office  of  trustee  after  one 
month,  by  an  election,  the 
election  is  valid,  and  the  com- 
missioners cannot  at  a  subse- 
quent time  make  an  appoint- 
men*^  to  the  same  vacancy,  . .  179 

See  Refusal  to  serve,  1. 

VACANT  LOTS. 

See  JVon-Residents,  5. 
VENDOR. 

See  Taxation  and  Taxes,  17. 

VESSELS. 

1.  Vessels,  canal-boats,   &c.,  are 

not  exempt  from  taxation,. . .       8 

2.  A  sloop  must  be  taxed  where 

the  owner  resides, 160 

VOID  PROCEEDINGS. 
1.  Proceedings  void  for  want  of  au- 
thority will  be  declared  so,  on 
application  to  the  Superinten- 


INDEX    TO    DECISIONS. 


473 


dent,  after  the  expiration  of 
the  time  limited  for  bringing 
appeals, 320 

2.  If  parties  are  apprized  that  pro- 
ceedings are  to  be  objected  to 
on  the  ground  of  illegality,  it 
is  their  own  fault  if  they  do 
acts,  by  virtue  of  such  proceed- 
ings, without  assuring  them- 
selves that  they  are  legal, . . . .  320 

See  J\rotice,  10,  19. 

VOTES  AND  VOTERS. 

1.  If  in  balloting  for  district  oflScers 

the  number  of  ballots  exceeds 
the  number  of  voters,  a  second 
balloting  should  take  place,. .     18 

2.  A  person  taking  up  his  residence 

in  a  school  distnct,  becomes 
by  that  act  a  voter,  if  he  has 
the  requisite  qualifications.  . .  18 
3  A  person  who  is  assessed  to  work 
on  the  highway  is  entitled  to 
vote  at  school  district  meetings,    29 

4.  A  person  coming  into  a  school 

district  the  day  before  a  dis- 
trict meeting,  with  the  bona 
^e  intention  of  residing  there, 
is  a  voter, 71 

5.  Persons  having  certain  qualifi- 

cations may  vote  at  district 
meetings, 71 

6.  If  a  legal  vote,  which  if  given 

might  have  affected  the  result, 
is  rejected,  proceedings  will 
be  set  aside  on  appeal, 84 

7.  Clerks  or  journeymen,  of  law- 

ful age,  are  entitled  to  vote  in 
school  districts,  if  they  have 
paid  taxes  on  the  highway,  . .    85 

8.  An  illegal  vote  does  not  neces- 

sarily vacate  the  proceedings 
of  the  meeting  at  which  it  is 
given;  but  if  the  illegal  vote 
might  have  affected  the  result, 
an  application  may  be  made  to 
the  Superintendent  to  set  a- 
side  the  proceedings, 94 

9.  A  person  exempt  from  a  tax  by 

reason  of  performing  military 
sei  vices,  may  vote  at  school 
district  meetings  notwithstand- 
ing such  exemption,  if  the  pay- 
ment of  the  tax  would  have 
given  him  a  right  to  vote,  . . .   142 

10.  Illegal  votes  not  affecting  the 
result  do  not  render  proceed- 
ings void 176 

11.  Persons  authorized  to  vole  for 
district  officers,  may  vote  for 
a  tax  though  they  may  not  be 
liable  to  be  assessed  for  it, . . .   183 

12.  If  the  votes  of  the  individuals 


in  favor  of  a  site  for  a  school- 
house,  are  procured  by  appeals 
to  their  pecuniary  interests, 
the  proceedings  will  be  set 
aside ,247 

13.  Colored  persons  may  vote  at 
school  district  meetings,  ....  318 

14.  If  part  of  a  resolution  passed 

by  the  inhabitants  of  a  school       * 
district  is  void,  the  whole  re- 
solution is  vitiated, 353 

See  Aliens. 

Alterations  in  School   JDis- 

tricts,  5,  9. 
Errors  and  Omissions,  4. 
Fuel,  6. 

Ministers  of  the  Gospel,  6. 
Public  or  School  Moneys,  7, 

18. 
School  Districts,  1. 
School-House,  13. 
Site  for  School-House,  2,  3, 

6,  7,8,  13,  14. 
Taxation  and   Taxes,  7, 11, 

44,  50,  51,  52,  56,  66,  72, 

73,  79. 
Trustees  of  School  Districts, 

6,  17,  36, 

VOUCHER. 
See  Commissioners  of  Common 
Schools,  10. 

WARRANT. 

1.  Trustees  of  school  districts  may 

renew  a  warrant  to  collect  a 
tax,  whether  issued  by  them- 
selves or  their  predecessors,.     27 

2.  If  a  district  meeting  votes  to  re- 

new a  warrant  and  collect  a 
tax,  the  trustees  may  regard 
it  as  an  original  vote  to  raise 
the  amount  specified,  and  is- 
sue a  new  warrant  for  its  col- 
lection,      27 

3.  If  a  warrant  to  collect  a  tax  is 

renewed,  the  collector  in  of- 
fice at  the  time  of  such  renew- 
al must  execute  it, 47 

4.  If  a  warrant  to  collect  a  tax  is 

made  out  under  the  seal  of  the 
trustees,  as  required  by  law, 
the  renewal  may  be  without 
a  seal, 63 

5.  Warrants  annexed  to  tax  hsts 

and  rate  bills,  are  to  be  exe- 
cuted in  the  same  manner  as 
warrants  issued  to  the  collec- 
tors of  towns, 143 

6.  If  a  warrant  is  issued  to  collect 

a  tax  which  has  not  been  as- 
sessed according  to  the  last  as- 
sessment roll  of  the  town,  and 


474 


INDEX    TO    DECISIOKCl. 


property  is  taken  and  sold,  the 
trnstee.s  who  issued  the  war- 
rant are  answerable  as  tres- 
passers: but  the  warrant  is  a 
complete  protection  to  the  col- 
lecfoT  who  executes  it,  . .    . .  281 

7.  A  warrant  runs  from  its  delive- 

ry and  not  from  its  date 2S6 

8.  A  collector  cannot  sell  proper- 

ty after  the  expiration  of  his 
warrant, 287 


See  Collector,  5,  8,  9.  10. 
Rate  Bill,  2,  3. 
Teacher,  9. 

Trusteex  of  School  DutritU, 
24,  26,  30. 

WINTER. 
See  Public  or  School  Moneyt,  17. 

WOOD-HOUSE. 
See  Taxation  and  Taxes,  4. 


INDEX 

TO 

LAWS,  FORMS  AND  REGULATIONS. 


ALBANY. 

Ooiiimissioners  and  inspectors,  §  167,  399 

Vacancies  how  filled,  ^  M>8 399 

Powers  of  rommissioners,  $  169,  170,  399 

Powers  of  iriistees.  §  17 1 , 399 

Clerk  of  common  council.  §172,....  399 
Apportionmenl    of  school  moneys, 

§173 399 

Chamberlain  to  receive  moneys,  §174,  399 
Moneys  to  be  rais°d  by  tax,  6  175,. . .  400 
Moneys  to  be  kept  disiinct,  §  176,-..  400 
Commissioners  to  apportion  moneys, 

§  177,178 400 

Powers  and  duties  of  officers,  §  179,.  400 

Lancaster  school,  §  ISO, 401 

Dislricl  west  of  Perry-street,  $  1»1,.  401 
Money  for  schools  east  of  Perry-st., 

^  li:;2,  189, 401,  403 

Moneys   to  be  paid  to  Chamberlain, 

§183 401 

Moneys  how  applied,  §  184, 402 

Districts  may  bs  increased,  §  184,...  402 
Other    moneys     how    apportioned, 

§185, 402 

Districts  wes' of  Perry-street,  §  186,.  402 
School-house  in  district  No.  2,  §  187,  402 

Per  cent,  on  rate  bills,  §  188, 403 

Tax  for  building  school-houses  east  of 

Perry-street,  §  1 403 

Buildings  to  'e  of  brick  or  stone,  §  2,  403 
Commissioners  to  superintend,  AC  , 

§3 403 

Commissioners  to  give  security,  §  4,  404 

Comraissioners  lo  be  paid,  §  5, 404 

!»an  tcj  be  made,  §  6, 404 

Interest  on  loan.  §  7, 404 

Lancaster  school-house,  §  8, 404 

Lots  and  buildings,  exempt  from  tax- 
es, §  9, 405 

Contingent  expen.-(e8,  §  1, 405 

Orphan  Asylum,  §  2 405 

Moneys  remaining  on  hand,  §3,....  405 
Kestriction  on  districts  east  of  Perry- 
street,  6  4, 405 

District  clerks,  $  5, 406 

AMENDMENTS. 

Lawsofl837 417,  418 

ANNUAL  REPORTS. 
Of  the  Superintendent,  §  1,... 363 


Of  commissioners  of  com.  schools, 

&  29 370,  417,  441 

Of  trustees  of  districts,  §  104,..  386,  417 

430,  431 

Of  county  clerks,  §  12.5,    390 

APPEALS, 

To  Superintendent,  §  124, 389 

Regulations  respecting, 443 

APPORTIONMENT, 
How  made  by  Superintendent,  §  3,.  364 

When  a  town  is  divided,  §  6, 364 

To   be  certified  to  comptroller  and 

clerk  of  each  county,  §7, 364 

How  made  to  school  districts, 367 

When  made  to  new  districts,  §  25,  26,  369 
When  money  of  district  remains  one 

year  in    hands  of  commissioners, 

§27 369 

Of  fuel  when  not  provided  by  tax, 

§9.5, 384 

Oflaxes,  §86 383 

ASSESSMENTS, 
Of  school  moneys  on  each  town,  $  16,  366 

438 
On  districts,  how  made, 383 

(See  Taxes,  Trustees,  &c.) 

BOARD  OF  SUPERVISORS. 
To  assess  an  amount  upon  each  town 
equal  to  that  apportioned  by   Su- 
perintendent, §  16,  17, 366 

When  to  assess  double  that  amount,  438 

BOOK  CASE, 

For  district  library,  §  62, 377 

Tax  for,  §  62,  , 377 

BO.\DS, 

To  be  given  by  collfector  of  district, 
§120, 388 

Form 429 

If  not  given,  office  of  collector  vacat- 
ed. $  121 389 

Trustees    to  deliver    to  successors, 

§117 388 

BRIGHTON. 

Coloured  children  how  to  be  taught, 
§214, 412 

Commissioners  to  be  trustees,  §  215,  412 


476 


INDEX    TO    LAWS, 


BROOKLYN. 
Commissiitners  and  inspectors  of  com- 
mon schools,  ^  65,   414 

Common  schools,  §  15, 415 

Trustees  to  report,  §  16, 415 

School-houses,  $  1, 416 

CATSKILL. 

School  district  No.  1,  $  203, 409 

CERTIFICATES, 
Of  apportionment  to  whom  sent,  §7,  364 
Copies  to  be  furnished   by  county 
clerk  to  supervisors'  clerk  and  trea- 
surer, §  15 366 

Of  teacners  by  whom  given, 373 

Form  of  teacher's  certificate, 443 

How  annulled, 373 

To  be  dated  within  one  year  of  the 

time  of  employment,  §  107,    387 

Of  commissioners  to  raise  more  than 
$400  for  school-house,  §68,     ....  378 
COLLECTOR, 

How  chosen,  §  61, 376 

Tenure  of  his  office,  $  80, 380 

Vacancies  how  filled,  §8] 380 

Forfeiture  for  refusal  to  serve,  §  82,.  380 

May  resign,  $83 381 

His  duty  in  executmg  warrants,  $  98,  385 
428,  429,  430 

Hisfees,^  118, 388 

To  collect  and  pay    over  moneys, 

§  119 388 

To  give  bond,  §  120— form 388,  429 

If  bond  not  given,   office   vacated, 

§121 389 

Forfeiture  for  neglect,  §122 389 

Trustees  may  sue  him,  ^  123, 389 

COMMISSIONERS, 
To  form  and  alter  dii>tricts,  §  19  sub. 

1, 367 

To  deliver  description  to  town  clerk, 

$  19,  sub.  4, 367 

To  apply  for  school  moneys,  §  19, 

sub.5 367 

When  to  apportion  school  moneys  to 
the  several  districts,  §  19,  sub.  6,  7,  367 

368 
To  form  districts  of  two  or    more 

towns,  $20, 368 

To  obtain  consent  of  trustees,  §21,.  368 
When  to  withhold  moneys   from  a 

district,  §22,23,24, 368,  369 

When  to  apportion  money  to  new- 
district,  formed  so  near  Jan.  1 ,  as 
not  to  be  able  to  make  report,  §  25, 

26, 369 

How  to  dispose  of  money  remaining 
in  their  hands  for  one   or   more 

years,  $27,  28 369 

Their  annual  report,  §  29 — form  of, .  370 

441 
Forfeiture  for  neglect,  §  31,  32,  38,..  370 
371,  418 
Their  accounts  how  kept  and  audit- 

ed,§34 371 

To  render  account  to  their  succes- 
sors, $  35 371 

Balance  remaining  in  their  hands  to 
be  paid  over,  §  36, 371 


When  and  how  prosecuted,  §  39,  40, 

41 372 

A  corporation  for  certain  purposes, 

$42 372 

Their  clerk,  §  43, 372 

Inspectors  by  virtue  of  their  office, 

§  44 373 

To  give  notice  within  5J0  days  of  for- 
mation of  district,  §  55, 375 

When  to  renew  notice,  §57, 376 

j  When  to  certify  sum  to  be  raised  for 

!      school-house,  §  68 378 

j  Joint  meeting  of  commissioners,  §  ^,  378 
!  Their  consent  required  to  alteration 

j  _    of  site  of  school-house,  §  70, 378 

I  To  be  electors  of  town, 436 

I  To  file  acceptance  of  office  within  ten 

I      days, 437 

Forfeiture  for  refusing  to  serve, 437 

Their  compensation  fixed,  §  5, 418 

Who  to  accept  resignation, 425 

When  their  decision  appealed  from, 

to  retain  money,  (8th  regulation,).  444 
They  should  allow  errors  of  form  in 
report  of  trus'ees  to  be  corrected, 

(regulation  7,) 444 

Forms  in  relation  to  their  duties, . . .  438, 

439,  440 

When  to  appoint  trustees,  §81,  ....  380 

COVERT, 
Commissioners  when  to  meet,  §  213,  411 

COUNTY  CLERK, 
His  duty  on  receiving  apportionment, 

$15,    36<J 

To  transmit  school  reports  to  Super- 
intendent, §125 390 

Penalty  for  neglect,  $  126, 390 

When  to  give  notice  to  town  clerk, 
§128, 390 

DECISIONS, 

Of  the  Superintendent, 389 

When  to  be  final,  §124 :J89 

DISTRICTS, 
Commissioners  to  form  and  alter, . . .  367 
Consent  of  trustees  to  alteration, ....  368 
When  formed  out  of   two  or  more 

towns 368 

When  moneys  withheld  from, 368 

Apportionment  to  new  district, 369 

First  meeting  and  proceedings,    375,  376 

Form  of  district  report, 430 

Form  of  do.  for  joint  district, 431 

Property  how  held,  §  111, 387 

Form  of  rate  bill  and  tax  list, . .  427,  428 

Apportionment  of  fuel, 430 

Notice  of  annual  and  special  meet- 
ings,   433,  434 

When  site  of  school-house  altered, 
how  property  disposed  of,  §  73, . .  378, 

435 

Minutes  of  proceedings, 435,  436 

Officers  of,  6  80 380 

Taxes  how  apportioned  m, 383 

Provisions  for  new  districts  to  receive 

school  money, 369 

(See  Trustees,  Collector  and  District 
Clerk.) 


FORMS    AND    REGULATIONS. 


477 


DISTRICT  CLERK, 

How  and  when  chosen,  §  61, 376 

Hid  general  duties,  §84, 381 

Tenure  of  his  office,  §  80, 380 

Vacancy  how  filled,  §81, 380 

Forfeiture  for  refusal  to  serve,  or  ne- 
glect of  duty,  §82, 380 

May  resign,  §83,  381 

His  duty  as  to  altering  site  of  school- 
house, 435,  436 

Forms  of  notices  for  meetings,   and 
minutes  to  be  kept  by  him,  .  434,  435, 

436 
May  be  librarian,  §64, 377 

DISTRICT  MEETINGS, 
Their  general  powers,   §  61,  62,  63, 

,,64,... 376,  377 

To  require  school  moneys  to  bo  di- 
vided,    382 

Annual  meeting,  §66, 377 

Special  meetings,  §67, 377 

Limitation  of  tat  to  be  voted,  §  63, 

68, 377,  378 

Form  of  notice,  and  of  proceedings, .  434 

EXEMPTIONS, 

From  taxation  for  school-house,  §  91,  384 
Indigent  persons  from  teachers'  wa- 
ges, sub.  10.  §  85 382 

Indigent  persons  from  fuel,  §95,  ...  384 

FLATBUSH, 

Moneys  how  paid,  §208, 410 

Moneys  how  applied,  5  209, 411 

Moneys  how  accounted  for,  §  210,..  411 

FLUSHING, 

Free  school  association,  §  211, 411 

Managers  to  report,  §212, 411 

FUEL, 
When  to  be  furnished  by  tax  on  dis- 
trict, sub.  5,  §61, 377 

How  apportioned  when  not  furnish- 
ed by  tax,  §94,95,   384 

Form  of  apportionment, 430 

Trustees  to  exempt  indigent  persons,  384 
When  trustees  to  furnish  and  charge 

delinquent,  §96, 384 

Form  of  tax  list  and  warrant, 427 

When  added  to  rate  bill,  §  97, 384 

GATES, 
Colored  children  to  bo  taught,  §  214,  412 
Commissioners  to  be  trustees,  §215,  412 

GENERAL  PROVISION, 
Section223, 417 

HUDSON, 
School  moneys  how  apportioned, 

§139, 397 

Treasurer  to  pay  moneys,  §160,  ...  397 

Moneys  how  applied,  §161 398 

Copy  of  apportionment,  §162, 398 

Moneys  to  be  raised,  §  163 393 

Moneys  to  be  paid  over,  §  164 398 

Moneys  how  distribiiled,  §  165,  ....  398 
Assessors  to  designate   inhabitants, 

§166, 398 


INSPECTORS, 
Their  duty  as  to  inspecting  teachers, 

§  45  to  51, 373,  374 

To  visit  schools,   §  52 374 

To  examine  into  the  condition  tf  the 

schools,  and  to  give  advice,  §  53,.  374 
Each  may  be  assigned  to  a  certain 

number  of  districts,  §  54,    374 

Abstract  of  their  dutie.s  and  form  of 

certificate, 442,  443 

Their  compensation  to  be  established 

at  town  meeting, 437 

To  file  acceptance  of  office  with  town 

clerk 4.37 

Forfeiture  for  refusing  to  serve, 437 

Who  to  accept  resignation, 425 

To  inspect  teachers  annually,  §  107,  387 

LIBRARIES, 
Moneys  may  be  raised  for,  §  62,  63, .  377 
Tax  how  assessed  and  collected,  §  65,  377 
Special  notifie  for  the  meeting,  §  62,  377 

Librarian,  who  may  be,  §  64,    377 

NEWBURGH, 

School  for  black  children,  §  1, 416 

Compensation  of  teachers,  §2, 417 

Restrictions,  §  3 417 

NEW-YORK, 

Duty  of  clerk,  §129, 390 

Corporaiiou  to  raise  money,  §  130,  .  391 
Additional  sum  to  be  raised,   §  131, 

132 391 

Money  to  be  deposited,  §133, 391 

Commissioners  of  school  money,  how 

appointed,  §134,   391 

Vacancies  how  filled,  §  135, 392 

Who  ineligible,  §136,  392 

Moneys  how  distributed,  §  137 392 

Report  of  trustees,  §138, 392 

Duty  of  commissioners,  §139, 393 

Moneys  how  apportioned,  §  140,  ...  .393 
When  money  to  be  withheld,  §141,  394 
Appeal  to  the  Superintendent,  §  142,  394 
Alms-house  school,  §  143,  144,  145,.  394 
Incidental  expenses  of  commission- 
ers, §146, 394 

OVID, 

Commissioners  when  to  meet,  §  213,  411 

POUGHKEEPSIE, 

To  be  a  school  district,  §200, 408 

School  mjney  how  to  be  paid,  §  201,  408 
Trustees  to  report,  §202, 409 

RATE  BILL. 
To  be  made  out  for  teachers'  wages, 

§85,  sub.  13, 382 

To  have  war  ant  attached,  §98,....  385 

May  be  renewed,  §103, 385 

Form  of,  and    'arrant, 428 

When  fuel  to  be  added  to,  §97,  ....  384 
Indigent  persons  exempt  from,  §  85, 

sub.  10,    382 

RECORD  BOOK, 
Tax  may  be  voted  for,  §6, 418 

REGULATIONS, 

To  be  printed  and  distributed,  §8,..  365 
O^Superintendent  relative  to  appeals,  443 


478 


INDEX   TO    LAWS, 


RF.SiaXATIONS, 

Of  disfrinl  olTicers,  $83 .181 

Notice  of.  Ill  wliom  civeii 381 

A  b:ir  to  reciivpry  of  prnaliirs 381 

Of  commissioners,  and   uilirr  luwn 

officers, 425 

KOCHK-STCK, 
Commissioners  of  commo  i  schools, 

$  1, 412 

School  tax  how  raised,  $2, 4l-i 

Additional  Slims,  ^3 412 

Money  liow  (hsiiibiitcd,  §4 Al'-i 

School  inspectors,  §5, 413 

High  schools  §fi 413 

School-hoiines,  67, 4H 

llights  and  privileges  of  ilisiricts,  §8,  414 

School-iiouse  how  repaired,  $8 414 

Rochester  high  sclinol,  §9, 414 

Trustees  to  report,  $10 414 

Number  of  schools  to  be  published, 

§11 414 

SCHOOL-HOUSE, 

How  site  altered,  §70 378,  435 

How  disposed  of  when  new  district 

is  lormcd,  $  77,  78,  71), 379,  380 

When  and  how  to  be  sold,  §  73,  75,  378. 

379 
Moneys  arising  from  sale  how  appli- 
ed, $74, 379 

Tax  to  build,  how  Voted,  $<5I,  sub.  5,  377 
Limited  to  $400.  unless  cuinmission- 

ers  consent,  $  C8   373 

Duty  iif  trustees  to  build  and  keep  in 

repair,  $85,  sub.  5 382 

Persons  exempt  from  lax  for  building, 

§91, 38J 

Remedy  against  owner,  where  tenant 

pays  lax  for,  $93, 384 

When  on  <li  vision  line,  or  joint  dis- 
trict, how  te  icher  and  .scliool  in- 
spected, $51, 374 

SCHOOL  MONEYS, 
When   apportioned  by  Superinten- 
dent, §2 .-. 3«4 

How  apportioMed  v\  hen  census  def  c- 

tive,  §5, 364 

How  when  tow n  altered,  §6, 364 

Certificate  of  apportionment,  to  whom 

given,  §7, 364 

When  paid  to  county  treasurer,  §  1 1,  365 
Duty  of  county  treasurer  in  relation 

to,  §  12,  13,  14 365,  366 

When  paid  to  cummissioiiers,  §  13,  .  365 
Whenap|K)rtioned  by  commis.-ioners, 

$  19,  sub.  6 367 

To  be  applied  exclusively  to  pay  qua- 
lified teachers, 363.  438 

To  be  divided  by  vote  of  meeting, 

^85    sub.  9 382 

Town  school  fund 418 

Arising  from  gospel  and  school  lots, 

how  applied 420,  421.  422 

In  case  of  apiieal,  to  be  retained  by 

commissioners,  (regulation  8,)   ...  444 
When  douMe  the  amonni  of  appor- 
tionment to  he  raised  on  town,  ...  437 
How  to  be  applied  in  seiwrate  neigh- 
borhoods, $  24, 31)9 


SEPARATR  NEIGH I50RII00DS, 
When  to  lie  set  off  and  how.   §  19, 

sub  2 367 

How  to  report,  §  li.9 387 

Pen  ilty  for  false  report,  §110, 887 

Form  of  report  [to  embrace  only  the 
children  residiiiu  in  this  siale,  and 
the  form  to  be  I  he  same  as  in  ordi- 
nary districts,]  iHO 

SUI'EKVISOKS, 
To  require  collector  to  pay  money  to 

comaiissioners,  §  17, 366 

When  lo  raise  a  sum  i-qual  to  hcliool 

moneys.  §  16 366 

To  prosecute  commissioners,  on  no- 
tice from  Superiniendeiit,  $  3;J,  ..  371 
To  divide  m'lueys  arising  from  gospel 

and  scImoI  lots, 421 

SUPERVISORS'  C    EHK, 
H  8  duty  in  relation  to  apportionment 

of  school  mimeys,  \\  15, 3(iC 

SCHENECTADY, 
Apportionment  of    school    money, 

»  190 406 

Duty  of  county  treasurer.  vS  191,  ...  406 
iMityofseho  •!  commiNsioners,  ^  192,  40t> 

Duty  of  assessors.  \>  193,    407 

Duty  of  trustees  of  school   districts, 

v\iy4 407 

pportimment  uf  moneys  collected 

by  lax,  *  195, 407 

To  whom  moneys  collected  by  tax  to 

be  paid  and  distributed.  v\  196,  ...  407 
Abstracts  of  assessment  rolls,  $  197,  408 

City  how  to  be  divided,  vN  198, 408 

Lancaster  schools,  \.\  199, 40£ 

TAXES, 
Duty  of  board  of  supervisors  in  rela- 

t^mn, 366 

How  voted,  and  for  what  purposes,.  377, 

418 

Limited 377,  378 

How  levied  and  applied,  where  dis- 
trict is  divided.  v\79, 380 

How  apportiorie<i,  ^S  86, 383 

Who  exempt  from,      91 384 

In  what  time  to  be  assessed,  v\  92,..  384 
Remedy  of  tenant  against  owner  for, 

vS93 384 

Warrant  for,  v\  98 386 

What  real  estate  liable 383 

TAX  LIST, 
To  be  made  out  uithm  one  month, 

$92, 384 

Form  of, 427 

Against  whom  n  ade  out,  $  86, 383 

V\  arrant  to  be  attached,  $  98, 99,  100, 
101 385 

TEACHERS, 

To  be  inspected  annually,  $107,...  387 
Trustees  to  contnict   with  and  pay 

them.  sub.  8,  §  85 382 

Form  ofceriificatefor, 443 

May  be  re-examined  and  ceriificate 

annulled,  §  48,  49, 373 

How   inspected   for    district    formed 

from  two  towns,  §  51, 374 


^ 


FORMS    AND   REGULATIONS. 


479 


Departments  for  educating,  §  4, 418 

TOWN  CLERK, 
To  be  clerk  of  commissioners,  §  43,.  372 
His  genornl  duties  as  such  clerk, ....  372 
To  assemble  commissioners  on  notice 

from  county  clerk,  §  li28, 372 

TOWN  COLLECTOR, 
To  pay  school  money  to  commission 

era,  §  17, 366 

When  to  pay  to  county  treasurer, 

§18 366 

TREASURER  OF  COUNTY, 
When  to  apply  for  school  moneys, 

§12, 365 

To  give  notice  to  commissioners,  §  13,  363 
To  liold  tlie  same  subject  to  orde.  of 

such  commissioners,  §  13, 365 

Moneys  remaining  in  his  hands  how 

disposed  of,  ^  14, 366 

When  town  moneys  to  be  paid  to  him, 

^18, 366 

TROY. 
Four  first  wards  a  district,  §  147, ....  395 

Inspectors  and  trustees,  §  148, 395 

Trustees  to  be  sworn, 149,  395 

Penalty  for  neglect,  §  150, 395 

School  moneys  how  paid,  §  151,  ...  395 
School-house  how  repaired,  §152,..  395 
Aldermen  of  5lh  and  6th  wards,  §  153,  395 

Tuition  to  be  graduated,  $  154, 396 

Indigent  persons  to   be  exempted, 

§154 396 

Commissioners  an'!  inspectors  how 

chosen,  §155, 396 

Districts  may  bo  set  ofiT,  §  156, 396 

Schools  in  1st  district,  $  157, 396 

Taxes  may  be  raised,  §  158, 397 

TRUSTEES, 
Their  consent  required  in  altering 

district,  §  21, 363 

Moneys  wiliiheld  from,  if  their  report 

is  defective,  §22,  23,  24 368,  369 

To  have  notice  that  teacher's  certifi- 
cate is  to  be  annulled,  §  48, 373 

How  chosen.  §  61,  or  appointed,  376,  38U 
To  call  special  meetings,  §  63, .  ....  377 


To  raise  lax  for  proportion  of  school- 
house  when  district  is  divided,  §  79,  380 

Tenure  of  office,  §80.81, 380 

Forfeiture  for  refusal  to  serve,  §  82,.  380 

Resignation  of,  ^  83 381,  425' 

Their  general  duties*  powers,  $B5»  381 

To  apportion  taxes,  §  86,  87,  88 383 

To  ascertain  valuations,  ^  89,  90,...  383 
To  make  out  lax  list  in  one  month,  .  384 
To  annex  warrant,  $98,  99, 100,  101,  385 
To  commence  suit  when  commis- 
sioners witiihold  money,  §  103,...  386 
Their  annual  report,  $  104,  105,....  386 

To  apportion  fuel,  §  95 , .  384 

How  to  report  in  districts  formed  in 

two  or  more  towns,  §  108, 387 

Penalty  for  ftlse  report,  §  110, 387 

To  hold  property  of  district  as  a  cor- 
poration, ^  111 :••;••  ^" 

To  account  to  successors  and  district, 

§112,113 388 

Forfeiture  and  remedy  against  former 

trustees,  §  114,115,  116 388 

When  to  appoint  collector,  §  121,...  389 

When  to  sue  collector,  §  i23, 389 

When   to   sue    delinquent  in    their 

name  of  office.  §  115,  123,...  388,  389 
Recoveries  against  them,  how  to  be 

indemnified  for, 438 

UTICA. 
School  moneys  how  paid,  §  204,....  409 
Trustees  to  report  and  account,  $  205,  409 

Tax  lor  repairs  and  fuel,  §  206, 409 

Schools  to  be  established,  §207,....  410 

School  moneys  how  paid,  §  65, 410 

Former  acts  repealed,  §69, 410 

City  to  be  considered  a  town — note,  410 
VOTERS, 

Their  qualifications,  §  60, 376 

Penalty  upon  those  not  qualified,....  376 
List  of,  to  be  made  in  certain  cases, 

§71, 378 

WARRANT, 
How  issued  and  renewed,  §  98,  102,  385 

Form  of  warrant  for  tax  list, 427 

Form  of  warrant  for  rate  bill 427 

Effect  of  warrant,  §  99, 100,  101, ....  385 


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